The U.S. Citizenship and Immigration Services (USCIS) announced that it will implement a new electronic registration system for H-1B cap subject petitions filed in 2020. All employers who wish to file an H-1B petition under the cap – that is on behalf of an individual who has not previously been counted against the annual limit on new H-1B visas – must register in the new system. The registration period will be open from March 1, 2020 to March 20, 2020, thereby moving up the initial timeline for H-1B visas from the usual opening date of April 1st.

The Electronic Registration System

Under the new system, employers must complete an electronic registration between March 1-20, 2020 and pay the associated $10 fee for each individual that they will sponsor for an H-1B visa during the annual filing period. While the new electronic system has not yet been publicly released, it is anticipated that the registration will include basic information about the employer, such as its name, tax identification number, primary office location, authorized signatory and an attestation that the company intends to file an H-1B petition, if selected, for the individual beneficiary, as well as the name of the individual that the employer will sponsor for an H-1B visa, and that individual’s date of birth, country of birth and citizenship, passport number and whether the individual has a Master’s degree or higher level degree from a U.S. institution. 

This system does not change the annual numerical limit on H-1B visas. As in prior years, there will be 65,000 visas available under the “regular cap,” which includes those with U.S. or foreign-earned Bachelor’s degrees or advanced degrees earned outside the U.S. and an additional 20,000 visas available for those with advanced degrees earned from a U.S. institution. At the end of the registration period on March 20, 2020, if USCIS has received more registrations than there are visas available, it is expected the agency will conduct a lottery and notify employers if their registration was selected in the lottery. As we have previously discussed, USCIS will reverse the selection order to prioritize those with U.S. Master’s or higher level degrees. If a case is selected during the initial electronic registration system, then the employer will need to submit the full H-1B petition to USCIS within a period specified on the selection notice that is expected to be at least 90 days. 

Practical Implications of the New System

An employer must collect basic information and file a registration by March 20, 2020 to participate in the coming year’s annual H-1B cap. Thus, employers should begin reviewing their population of current and potential employees to identify those for whom they would like to file an H-1B petition in early 2020. This often includes employees working pursuant to student status such as F-1 OPT or STEM, as well as other employees and candidates. 

Under the new system, we expect that employers may be notified earlier than in previous years as to which cases are selected in the H-1B cap, thereby allowing for less uncertainty and better planning. We are closely watching for further announcements by USCIS on the roll-out of the new electronic system, including implications for employees with F-1 OPT EADs that expire in April or May 2020 who were previously covered under an initial “cap gap” period based upon the filing of an H-1B petition and allowed to keep working for a short period while the lottery was in place. 

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