The New H-1B Cap Registration Process: How It's Going to Look
The Department of Homeland Security (DHS) has established a mandatory Internet-based electronic registration process for employers seeking to file H-1B petitions for beneficiaries that may be counted under the regular cap or advanced degree exception. The new regulations, as proposed in January 2019, will go into effect for the 2021 Fiscal Year, though further delay is possible. This means that for the upcoming H-1B Cap season, companies will be required to register their company and the intended beneficiary online with U.S. Citizenship and Immigration Services (USCIS). DHS has proposed a $10 fee for each electronic registration. The registration process is not required for cap-exempt H-1B petitions.
While the process is new, the federal regulations provide a good idea of what the process may look like. The registration period will begin at least 14 calendar days before the first day of filing in each fiscal year. As the first filing date is on April 1, 2020 for the upcoming fiscal year, the registration period will open no later than March 18, 2020. The Registration period will be announced to the public at least 30 days before it opens, or by February 17, 2020. The results of the selection will be communicated to registrants and their counsel at the completion of the selection process.
USCIS will conduct a random selection of all of the registrations received during the initial registration period. The number of registrations selected will be greater than the 85,000 visas allotted each year—the actual number selected will be based upon historical data. The number selected is generally between 95,000–100,000 and accounts for denials, rejected petitions, and the likelihood of some employers to change their minds and not file a petition. In the unlikely event that insufficient registrants are received during the initial period to fill the fiscal year quota, USCIS will open an additional period. If sufficient registrations are received during the initial period to fill the quota, but additional visas become available later in the year, unselected registrants from the initial period will remain on reserve for the applicable fiscal year. However, unselected registrants will not carry over to the next fiscal year; employers will be required to re-register for unselected beneficiaries the following year.
During the initial registration period, the beneficiary’s start date must be October 1, 2020 (the first business day of the fiscal year). An employer will only be allowed to register once per beneficiary to prevent abuse of the system. Further, the registration will include an attestation by the employer that they intend to file an H-1B petition for the listed beneficiary. Multiple prospective beneficiaries cannot be listed on a single registration and employers cannot edit a registration once it has been received by the USCIS.
The registration process will require the company to provide the following information: (a) the employer’s name, FEIN and mailing address; (b) the employer’s authorized representative’s name, job title and contact information; (c) the beneficiary’s full name, date of birth, country of citizenship, gender and passport number; (d) if the beneficiary has obtained a master’s or higher degree from a U.S. institution; and (e) information regarding the employer’s attorney.
If a registrant is selected, USCIS will notify that registrant and his or her attorney (if applicable) that the employer is eligible to file an H-1B cap-subject petition on behalf of the named beneficiary within the designated filing period. The notice of selection will indicate a filing location and the designated filing period during which the H-1B petition must be filed, and provide instructions on how to file the petition. Employers will be provided a period of at least 60 days to properly file a completed H-1B cap-subject petition for the named beneficiary. For example, the filing period may run from April 1 to May 30, from May 1 to June 30, or other 60-day period as determined by USCIS that allows them to efficiently process the cap-subject petitions before the requested start date. Employers will not be permitted to substitute beneficiaries. A selected registrant who does not file a petition on behalf of the named beneficiary within the assigned time frame will forego the eligibility to file during the active fiscal year.
The process as detailed above does portend some significant changes. Most significantly, employers may now wait until they have been notified of selection before submitting a Labor Condition Application to the Department of Labor and preparing the corresponding H-1B petition on behalf of the beneficiary named in the selected registration. This should mean a more cost-effective H-1B Cap season for employers, as well as an H-1B cap season with more certainty, as employers will be able to better predict, earlier in the process, how many H-1B employees they are likely to be able to employ in the coming fiscal year. Employers are encouraged to contact immigration counsel to determine a satisfactory timeline for the preparation and execution of planned H-1B cap-subject petitions.
Bottom line, it is important for H-1B employers to be aware of this new process and to understand the implications it will have on their future use of the H-1B visa program.