At a glance

  • Each H-1B cap sponsoring entity will need to create an account in the new USCIS H-1B cap registration system, starting February 24, 2020.
  • The FY 2021 H-1B cap registration period will open at noon ET on March 1, 2020 and will close at noon ET on March 20, 2020. All cap registrations must be received during this period. The USCIS system will not allow registrations to be drafted before the registration period opens on March 1.
  • USCIS will conduct the FY 2021 H-1B cap selection lotteries and notify sponsoring employers of winning entries by March 31, 2020.
  • Employers may submit petitions for winning registrations starting April 1, 2020. The petition filing period will close no earlier than June 30, 2020.

The issue

In a webinar for employer stakeholders held today, USCIS presented the new H-1B cap registration system, which will be in effect for the FY 2021 cap season. Key elements of the registration and petition process are addressed below. USCIS's slide presentation from today's employer webinar is available on the agency's website.

Employers must set up registration accounts

Your organization will need to create a cap registration account for each Employer Identification Number (EIN) entity that will sponsor beneficiaries for the FY 2021 cap season. An employer account is necessary whether your organization will work with immigration counsel to submit registrations or will submit registrations on its own behalf.

Employer accounts can be created at beginning on February 24, 2020 and until the H-1B cap registration period closes on March 20, 2020. To set up an account, each entity must provide:

  • the legal name of the sponsoring entity;
  • the Doing Business As (DBA) name of the organization, if any;
  • the entity's EIN number;
  • the primary office address of the sponsoring entity; and
  • the name, job title, email address and phone number for the company employee who will serve as authorized signatory for the sponsoring organization.

If your organization will be represented by immigration counsel during the registration process, you will be able to associate your organization's account with its attorneys' accounts at a later stage of the registration process.

Cap registration starts on March 1, 2020

USCIS will open the cap registration period on Sunday, March 1, 2020 at noon ET. Employers and their immigration counsel can begin to draft and submit cap registrations at this time; the USCIS system will not accept drafts or registrations before March 1.

The registration period will close on March 20, 2020 at noon ET. All registrations for the FY 2021 cap must be submitted by this time. Late registrations will not be accepted.

Employers will be able to include up to 250 beneficiaries in a single registration submission. There is no limit on the number of registrations an employer can submit.

Gather H-1B beneficiary information now

Though cap registration will not open until March 1, employers should work with their immigration counsel to identify H-1B cap needs and gather beneficiary data as soon as possible. For each beneficiary, the employer must provide the following:

  • full legal name;
  • gender;
  • date of birth;
  • country of birth;
  • country of citizenship;
  • passport number, if any; and
  • whether the beneficiary is eligible for the U.S. advanced-degree cap, or will be eligible for the advanced-degree cap at the time a petition is filed on the beneficiary's behalf.

The sponsoring entity can submit only one registration per H-1B beneficiary; if an entity files more than one registration for a beneficiary, each of those registrations will be cancelled and the employer will not be permitted to re-submit a registration for that beneficiary this fiscal year. Multiple related entities can each submit a registration for a specific beneficiary, but only if each entity can show a legitimate business need to file a registration for that beneficiary. USCIS will closely scrutinize registrations to identify prohibited duplicates before it runs the cap lotteries.

The registration period

Between March 1 and March 20, 2020, employers and their counsel will need to draft, review and sign each registration submission. Once immigration counsel has drafted a registration, the USCIS system will generate a passcode that your organization will use to review, approve and electronically sign the registration. If your organization approves the registration, your counsel will sign it electronically, submit it, and pay the registration fee of $10 per beneficiary.

The H-1B cap lottery

After the registration period closes on March 20, USCIS will conduct two lotteries to select enough beneficiaries to meet the 85,000 annual cap. The first lottery will include all registered beneficiaries and will select enough registrations to meet the regular cap of 65,000. The second lottery will include registered U.S. advanced-degree holders who were not chosen in the first lottery, and will select enough registrations to meet the advanced-degree cap exemption of 20,000.

USCIS plans to notify employers and immigration counsel of winning registrations by March 31, 2020. Employers and counsel will receive USCIS emails notifying them that the status of their registration(s) has changed; they will then need to log into the USCIS system to see the selection status of each registered beneficiary.

For each winning beneficiary, USCIS will provide a selection notice that must be printed out and submitted with the cap petition for the beneficiary. The selection notice is valid for the named beneficiary only; employers cannot substitute beneficiaries.

The cap petition filing period

USCIS will begin to accept cap petitions for winning beneficiaries on April 1, 2020. The petition filing period will close no earlier than June 30, 2020.

Employers can file their petitions at any time during the filing period, but some cases might need to be filed early in the period. For example, an F-1 student with an optional practical training (OPT) employment authorization document (EAD) that expires on May 15 must have their cap petition filed before that date to ensure cap-gap work authorization benefits through the October 1 start date of their cap petition. Your organization should work with your Fragomen representative to identify beneficiaries whose petitions must be filed by a specific date within the registration period.

In the coming weeks, USCIS is expected to announce whether premium processing will be available during the FY 2021 H-1B cap petition filing period.

What employers should do now

In addition to identifying their H-1B cap needs for FY 2021, your organization should work with your designated Fragomen representative to set up employer registration accounts starting February 24, and plan for review and approval of registrations during the March 1-20 registration period. Your organization should also work with your Fragomen team to begin to gather supporting documentation and information required for H-1B cap petitions. Advance preparation can minimize the risk of delay during the busy registration and petition filing periods.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.