It’s Time to Prepare for the FY2021 H-1B Visa Filing Season
The annual allotment of the popular H-1B employment visa for professionals to work in “specialty occupations” will become available on April 1, 2020. As in past years, the demand will likely exceed the quota, which will necessitate the government to conduct a lottery to select the petitions to be adjudicated.
Preparing for the Upcoming H-1B Cap Season
As soon as possible, we encourage employers to identify any employees or prospective employees who require H-1B visa sponsorship. This may include individuals who were not selected in previous H-1B lotteries, F-1 students, previous J-1 trainees, L-1 employees facing long green card delays, or other employees whose work authorization may be in jeopardy under changes in the immigration system proposed by the current Administration (e.g., persons working pursuant to H-4 employment authorization). Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions until the following April for a start date in October 2021.
USCIS Plans to Implement New Registration System
As previously reported by Mintz, in 2020, the United States Citizenship and Immigration Services (USCIS) will likely implement its new H-1B registration system for the upcoming FY2021 H-1B cap season. Under the new registration system, petitioning employers will no longer submit a full H-1B petition with USCIS before the lottery is conducted. Instead, employers will be required to submit a registration for each qualified H-1B visa beneficiary whom they wish to sponsor.
The registration filing period will be announced on the USCIS website, at least 30 days before the registration period begins. The submission period for H-1B registrations will last at least 14 days. Each H-1B registration will require the submission of a nonrefundable $10 fee to USCIS. If the number of registration submissions exceeds the 85,000 annual limit, USCIS will conduct a computer-generated lottery, which will select registrations. For each selected registration, the petitioning employer will then have 90 days to submit a full H-1B visa petition to USCIS.
Timing of New System’s Implementation Uncertain
Although the Department of Homeland Security (DHS) and USCIS have announced the implementation of the new registration system for the upcoming H-1B cap season, DHS and USCIS reserve the right to suspend the registration process and return to the existing process if there are technical difficulties with the new H-1B registration program. Petitioning employers need to prepare for the possibility of needing to file full and complete petitions during the first five business days in April 2020 if USCIS decides to suspend or not move forward with the new registration system, at the agency’s own discretion.
In such case, petitions will have to be filed in the first week of April in order to be included in a lottery from which a limited number of petitions will be selected for employment to begin October 1, 2020.
Potential Cap Lottery Disruption Requires Early Planning
Due to the uncertainty regarding which process USCIS will use this year or when the registration process will begin, it is even more important to contact your attorney in Mintz’s Immigration Practice to discuss the individuals you want to sponsor. We will work with you to assess the cases and plan the best option for your company to prepare for this year’s process. Again, we strongly advise clients to finalize their H-1B petition decisions and obtain relevant information as soon as possible.
©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume IX, Number 338