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It’s Official: USCIS Confirms New H-1B Registration Process For Fiscal Year 2021

On Nov. 7, 2019, the U.S. Citizenship and Immigration Services (USCIS) announced a final rule for a new, electronic registration process for the fiscal year H-1B 2021 cap season. 

USCIS confirmed, on Dec. 6, that it had completed a successful pilot testing phase of the new registration process and its plan to implement the process in the next H-1B lottery. USCIS will provide step-by-step instructions on its website on how to use the registration system before opening it for the initial registration period in March 2020.

The new process is expected to reduce paperwork and provide cost savings to petitioning employers whose applications are not selected. However, the performance of the platform remains a mystery and could introduce new, unknown challenges for sponsoring employers. 

The H-1B visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, i.e. those that require the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s degree or its equivalent as the minimum qualification for entry into the occupation; fashion models of distinguished merit and ability; or individuals providing services related to a Department of Defense (DOD) cooperative research and development project or co-production project. 

Under the new registration process – which differs fundamentally from the prior years’ process – employers seeking to file H-1B cap petitions for the fiscal year 2021 cap season must first complete a brief online registration form and pay a $10 filing fee for each employee they want to sponsor during the designated period. The initial registration period will run from March 1-March 20, 2020. If, at the end of that period, USCIS determines that it has received more registrations than needed to reach the H-1B regular cap, it will randomly select a sufficient number of electronic registrations projected as needed to meet the cap. 

USCIS proposes to select registrations no later than March 31, 2020. USCIS will then notify employers with selected registrations that they are eligible to file an H-1B cap-subject petition on behalf of the named beneficiary within the designated filing period. Only those employers with selected registrations will be eligible to file H-1B cap-subject petitions with USCIS.  

In connection, on Dec. 2, the Department of Homeland Security (DHS) proposed a new rule regarding the registration requirements. If accepted, the rule would allow USCIS to give employers at least 60 days to properly file an entire H-1B petition for the named beneficiary. Along with notification of an employer’s registration selection, USCIS would indicate a filing location and the designated filing period during which the H-1B petition must be filed. Employers who fail to file a petition on behalf of the named beneficiary within the specified timeframe stated on the notice will forego eligibility to file an H-1B cap petition. Any petitions received after the 60-day deadline will be rejected by USCIS and returned to the employer. 

In the unlikely event that that USCIS determines it has received fewer registrations than needed to meet the projected number of petitions to reach the H-1B regular cap during the initial registration period, USCIS will notify all registered petitioners that all registrations have been selected. USCIS will then continue to accept and select registrations, on a rolling basis, until a sufficient number are received to meet the H-1B regular cap. 

USCIS warns that it will monitor the new registration system for potential fraud and abuse. Although petitioners can register multiple foreign nationals, duplicate registrations for the same beneficiary will be discarded. Additionally, employers will not be allowed to substitute beneficiaries once selected. The final rule will also require employers to attest to their intent to file an H-1B for the beneficiary in the position for which the registration is filed. 

Employers intending to sponsor employees for the H-1B 2021 cap season should consider these changes and plan accordingly. 

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume IX, Number 347


About this Author

Tejas Shah Immigration Lawyer Barnes & Thornburg Chicago

Tejas Shah has the ability to take the complex and confusing nature of immigration law and simplify it for his clients. His goal is to not only help them comply with the multifaceted requirements of U.S. immigration law, but also to ensure that as clients source global talent, they thrive in environments that can be hostile to migration.

As employers increasingly seek to hire and retain talented foreign national employees to maximize competitiveness, Tejas is empathetic to their needs and offers practical immigration law advice. He is committed to guiding employers of all sizes –...

Mercedes Badia-Tavas Immigration Attorney

Mercedes Badia-Tavas provides legal and business guidance to clients on a broad range of immigration law cases, with focus on Fortune 500 and small companies alike. Mercedes supports her firm’s offices and clients across various states on immigration employment transfers and up-to-date compliance.

As an immigrant herself, Mercedes finds particular fulfillment in helping companies and individuals immigrate to the United States and participate in the American dream through startups and business transactions that also can benefit the U.S. economy.

Mercedes attributes much of her practice today to her dedication to resourcefulness from years of experience, meticulous preparation and organization skills. This entails a thorough understanding of her client’s industry, operations, culture, practices and financial goals in order to lay out realistic expectations and alternative strategies, as needed. Mercedes believes in being organized in her approach and documentation as a way of helping her clients manage costs. She and her team are committed to employing systems-driven tracking, timely updates and follow-ups with clients, and being pragmatic when unexpected issues arise.

Mercedes advises on a range of employment-based immigration needs, including temporary (nonimmigrant) and permanent (immigrant) visas for executives, managers, investors, professionals, aliens of extraordinary ability, and essential, specialized and skilled workers. She works hand-in-hand with clients on their corporate global mobility policies and compliance documentation regarding sponsoring foreign nationals for employment-based visa classifications. She is regularly involved in I-9 Employment Eligibility Verification (EEV) and H-1B Labor Condition Application compliance.

Mercedes also provides in-house and on-site training on immigration planning for personnel transfers, immigration-related due diligence for mergers and acquisitions, consular applications, and naturalization and citizenship initiatives. She guides clients through internal immigration program administration and monitoring, and trains human resource personnel and other managers on the evolving areas of immigration law and practical integration of immigration policies, procedures and compliance statutes to everyday business operations.

Born in Cuba and bilingual in Spanish and English, Mercedes has sincere compassion for and sensitivity to her clients, keenly aware of the legal land mines and tedious pathways they would navigate through the U.S. immigration system. Whether Mercedes is advising on an immigration matter for an individual relocating from abroad, transferring within the U.S. from another employer, entering the U.S. workforce from student status, looking to build a U.S. business or someone part of a cultural exchange program, she provides her experience with the same strong zeal and commitment toward the best outcome.

Notably, Mercedes has been featured on NPR and Spanish-language broadcasts on immigration topics, many of which included audience call-ins. Prior to joining Barnes & Thornburg, Mercedes had built her own legal practice over nine years as the founding partner of Badia-Tavas Law Group, representing similar categories of clients she now services, with a little more individual and family-type immigration cases involved. She has traveled and lived throughout Latin America.

Michael Durham Immigration Attorney Barnes & Thornburg

Michael Durham has been practicing immigration law exclusively for the past 17 years. Michael’s focused experience allows him to guide his clients through the complex and constantly changing labyrinth of immigration laws and regulations.

Michael’s knowledge and understanding of immigration laws and critical insight into the immigration process qualifies him to represent businesses, employers and individuals alike with a wide range of immigration-related needs and services.

He assists employers, including hospitals, colleges and universities, technology companies, religious...