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January 2020 Immigration Alert

USCIS Officially Releases Regulations Regarding Its H-1B Electronic Registration Tool for the FY 2021 H-1B Cap

On January 9, 2020, U.S. Citizenship and Immigration Services (“USCIS”) officially released regulations to implement the H-1B Electronic Registration Tool (“ERT”).

In the past, USCIS would open the H-1B cap lottery and begin accepting H-1B cases for the fiscal year (“FY”) during the first week of April. During that week, USCIS would accept fully completed H-1B petitions from U.S. employers wishing to hire non-U.S. employees who never previously received H-1B employment and then would complete a random computer-generated lottery to pick a total of 85,000 petitions. For those not selected, USCIS would return the fully completed H-1B petition to the employer or its legal representative.

For the upcoming FY 2021 H-1B cap, USCIS will replace the traditional H-1B filing process with the new H-1B ERT system. Under the H-1B ERT, a company or its attorneys will register the company and the to-be-sponsored H-1B employee(s) within the H-1B ERT system. The company information required for the H-1B lottery registration includes company name, employer federal tax identification number, the company’s main address, and the company signatory’s name, title, and contact information. The employee’s information required for the registration includes the person’s name, gender, highest degree received, date of birth, country of birth and citizenship, and passport number.

Unlike previous years, it is not necessary to prepare a full H-1B petition including the Labor Condition Application until after the case is chosen under the H-1B ERT lottery.

The initial H-1B ERT registration period will be from March 1, 2020, to March 20, 2020. To avoid potential complications, all registrations should be submitted no later than March 19, 2020. The registration requires (1) entry of the sponsoring company’s information, listed above; (2) entry of the employee’s information, listed above; and (3) payment of a $10 registration fee for each employee to be registered.

After March 20, 2020, USCIS will complete its lottery and select H-1B ERT-registered employees no later than March 31, 2020. By March 31, 2020, USCIS will notify chosen registrations via email or text through the company or the registered attorney. The company must submit the actual H-1B petition to USCIS within a specific time of not less than 90 days from the notification date. The registrations that were not chosen cannot submit an H-1B petition but will be put on a waiting list to fill the H-1B annual quota, if numbers become available again due to employers failing to file the full petition with USCIS by the allotted time after selection.

Please note that the H-1B ERT registration does not officially start work authorization for those in F-1 status whose OPT EAD work authorizations expire before October 1, 2020, under what is known as the H-1B “cap gap.” Automatic work authorization will be extended when the H-1B petition for change of status is timely filed before the OPT EAD work permit expiration date. Therefore, to receive H-1B cap-gap benefits, those chosen for the H-1B cap under the H-1B ERT will need to submit the H-1B change of status petitions before the current OPT or STEM (science, technology, engineering, and mathematics) OPT EAD work authorization expires.

Increased Customs and Border Protection Screening at U.S. Ports of Entry for People of Iranian Descent

As of January 9, 2020, there have been reports of increased scrutiny by Customs and Border Protection (“CBP”) of travelers of Iranian decent—including U.S. citizens—reentering the United States from Canada. CBP released a statement that it may conduct additional screening on “individuals who present a known risk or individuals about whom we need more information to make a determination of risk,” and that this may result in some travelers experiencing increased wait times and subsequent interviews. As a result, we advise companies with employees of Iranian decent or nationality to avoid international travel outside the United States at this time, if possible. 

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 22

About this Author

Patrick G. Brady, epstein becker green, labor employment, erisa, wage

Patrick G. Brady is a Member of the Firm in the Labor and Employment practice, in the firm's Newark office. He has worked extensively on complex wage and hour and other employment litigation and ERISA, WARN Act, and Family Leave Act matters.

Mr. Brady's experience includes:

Representing employers in class action and collective action litigation involving FLSA/state wage and hour issues

Representing employers in wrongful discharge, sexual harassment, breach of contract, discrimination/...

Senior Counsel

ARIT BUTANI* is a Senior Attorney in the Immigration Law Group, in the San Francisco office of Epstein Becker Green.

Mr. Butani:

  • Provides strategic counsel to clients of all sizes and from various industries—including software companies, biotechnology companies, architecture firms, financial institutions, manufacturing companies, brand marketing companies, entertainment companies, IT consulting firms, and staffing agencies, among others—on all aspects of immigration
  • Advises on a wide range of business immigration issues, including PERM, PERM...
Jungmin Choi, Employment, Labor and Workforce Management, Immigration Law, Epstein Becker and Green, Law Firm

Jungmin Choi is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the Newark office. She concentrates her practice on employment-based immigration law. In 2016, Ms. Choi was recommended in The Legal 500 United States, for Immigration.

Ms. Choi's experience includes:

  • Advising employers in variety of industries on business-related immigration matters involving the recruitment, hiring, transfer, and retention of foreign nationals in the United States
  • ...
Jang Hyuk Im, epstein becker green, labor, employment

JANG HYUK IM is a Member of the Firm in the Labor and Employment practice, in the firm's San Francisco office. For more than a decade, he has advised and assisted companies in a wide range of immigration and other employment-related matters.

Mr. Im:

Counsels employers in securing all documentation, visas and permits necessary to facilitate the admission of individuals in temporary working visa classifications into the United States

Assists clients to retain these foreign nationals as full-time...