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Act Now! New Procedures in Place for H-1B Season

There is no time to waste! If you are contemplating sponsoring a foreign worker for an H-1B visa, new procedures require you to register electronically starting March 1. Note this only applies to cap-subject applications. In other words, the registration requirement may not apply to an H-1B change of employer. Following registration, US Citizenship and Immigration Services (USCIS) will conduct the selection process from those that have registered. This is for employment commencing on or after October 1, 2020.

Here’s a breakdown of the new procedures.

Create a USCIS Account

Both the attorney and employer will need to create USCIS online accounts. It is imperative that you let us or immigration counsel know as soon as possible that you want to participate in the online registration. This can be done starting February 24, 2020. Follow these instructions provided by USCIS to create an account.

Registration and Selection Process

The online accounts will be used to register each H-1B that employers hope to file. While registration is open from March 1–20, we must gather preliminary information on the employee, employer, and the position. Most notably, an analysis of the position as a specialty occupation and a determination of the prevailing wage must be conducted prior to registration. The employer and legal counsel will both have to participate in the registration for each H-1B filing. We urge clients to plan to register early to avoid potential technical glitches with the system at the close of the registration period.

USCIS plans to notify selected registrants no later than March 31, 2020. Registrations not initially selected will remain on reserve in the event additional registrants are needed to meet the cap. If at any time the registration process is suspended, it may be necessary to prepare a full application to be filed for April 1, 2020. Thus, we recommend having all supporting documentation gathered at the time of registration.

Selected registrants will be notified electronically — via email or text. If notified of selection, the employer will have 90 days to submit the full application. For some students working in student status (F1/OPT), there may be considerations on timing for travel and to prevent interruptions in employment. Protection of students who are employed will attach once the H-1B application is filed, not at the time of registration.

Fee

The fee for registration is $10 per beneficiary/employee and must be paid online. This is the responsibility of the employer and cannot be paid by the foreign worker.

Timeline

Here’s a recap of the timeline:

  • February 24: Prospective employers/petitioners may begin creating H-1B registrant accounts (account creation will remain open throughout the entire registration period).

  • March 1: H-1B registration period opens at noon ET.

  • March 20: H-1B registration period closes at noon ET.

  • March 31: Date by which USCIS intends to notify selected registrants.

  • April 1: The earliest date that FY 2021 H-1B cap-subject petitions may be filed.

Processing Time

Processing times apply only to those registrations that are selected for filing. USCIS has not announced if or when premium processing will be available for this H-1B filing season. Without premium processing, USCIS generally takes approximately four–six months to process applications.

There has been speculation that the registration process could result in more H-1Bs being sought than in the past. In prior years, the number of H-1B applications filed exceeded the available cap by three- and four-fold.

© 2020 Jones Walker LLPNational Law Review, Volume X, Number 51

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About this Author

Laurie M. Riley, Jones Walker, civil rights attorney, employment related litigation lawyer
Partner

Laurie Riley defends employers in civil rights and other employment-related litigation, including litigation under federal laws, such as Title VII, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and their state law counterparts. She has also represented employers in class action cases involving allegations of institutional discrimination in terms of promotion, discipline, compensation, and termination. Ms. Riley also represents employers involved in administrative proceedings...

305-679-5728
Mary Ellen Jordan, Jones Walker, civil rights lawyer, immigration attorney
Special Counsel

Mary Ellen Jordan represents and counsels employers in civil rights, immigration, and other employment-related matters.

504-582-8706