On December 6, 2019, USCIS announced that it officially plans to implement the electronic H-1B registration process for petitioners seeking to submit H-1B cap-subject petitions for FY 2021.1 USCIS also confirmed the dates of the new program, which will include an initial registration period from March 1 through March 20, 2020.2 The H-1B visa is a popular option for nonimmigrant workers used by businesses that want to employ foreign nationals to work in a specialty occupation requiring theoretical or technical expertise.
Nearly a year ago, on January 31, 2019, USCIS issued a new final rule, announcing sweeping changes to the H-1B visa lottery process.3 The final rule introduced the electronic pre-registration requirement, along with the reversal of the order by which USCIS selects petitions under the H-1B cap and the advanced degree exemptions.4 DHS suspended the electronic registration requirement for the past H-1B electronic registration period,5 making FY 2021 the first year for actual implementation of the electronic process. Subsequently, on November 8, 2019, USCIS published a proposed rule to require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee per electronic registration submitted to USCIS for the H-1B cap selection process, which became effective December 9, 2019.6
For FY 2021, prospective petitioners must electronically submit a separate registration naming each foreign national for whom they seek to file an H-1B cap-subject petition, accompanied by basic applicant information. After the registration period closes, USCIS will conduct its annual lottery (if it receives more registrations than the cap allotted). USCIS will keep unselected registrations in reserve and use as needed to meet the cap.7
After conducting the lottery, USCIS will notify the employers linked to the selected registrations, which must file full H-1B petitions within a 60-day filing period.8 During this time, employers can elect to file the selected registrations with complete supporting documentation, which will then be adjudicated by USCIS. Petitioners are not required to file a Labor Condition Application (LCA) with Department of Labor (DOL) for the electronic pre-registration for the beneficiary. They may do so after the beneficiary is selected in the electronic registration period.9
The following information must be included in the electronic pre-registration:
- Employer/Sponsor Information: Employer's name, employer identification number (EIN), and employer's mailing address, with employer's authorized representative's name, job title, and contact information (telephone number and email address);
- Beneficiary/Applicant's General Information: Beneficiary's full name, date of birth, country of birth, country of citizenship, gender, and passport number;
- Beneficiary/Applicant's U.S. Educational Information: Information on whether beneficiary has obtained a master's or higher degree from a U.S. institution of higher education;
- Immigration Attorney Information: The employer's attorney or accredited representative, if applicable (a Form G-28 should be also submitted electronically if this is applicable); and
- Additional: Any additional basic information requested by the registration system or USCIS.10
Change in Lottery Process
This year's H-1B process will also witness a reversal of the traditional lottery practice, which is the process by which USCIS selects H-1B petitions toward the projected number of petitions needed to reach the regular cap and the advanced degree exemption. To enhance the probability of a master's degree holder to be chosen in the lottery, USCIS will first select 65,000 applicants from the overall registration pool, which will include both master's cap and regular cap petitions. Then, USCIS will select 20,000 additional master's cap petitions from the pool of unselected master's cap petitions (which will not include regular cap petitions).11 USCIS estimates that the change will result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master's degree or higher from a U.S. institution of higher education.12
In its announcement, USCIS notes that "DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration process" and that it "will provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period."13
As the March 1, 2020 initial filing date approaches, employers should remain aware of the major procedural changes becoming effective for the coming H-1B season, as well as the changes to the lottery system making selection of master's degree petitions increasingly likely. Additionally, while less extensive documentation requirements will simplify the initial registration, decreased barriers to registration will likely have the effect of amplifying the volume of initial H-1B petitions.
The new earlier dates of the registration period also mean that employers must decide more quickly than usual as to whether to pursue H-1B petitions on behalf of employees, especially given the potential for unforeseen challenges inherent to the implementation of the brand-new electronic system. If your organization is planning to petition for H-1B employment in FY 2021, it is advisable to contact counsel immediately to discuss and begin the planning process.
1 See USCIS, USCIS Announces Implementation of H-1B Electronic Registration Process for FY2021 Cap Season, AILA Doc. No. 19120690 (Dec. 6, 2019).
3 See 84 FR 888 (describing new electronic registration process and amendment to process by which USCIS selects H-1B petitions).
5 See USCIS, News Releases: DHS Announces Final Rule for a More Effective and Efficient H-1B Visa Program, USCIS News (Jan. 30, 2019).
6 See 84 FR 60307.
7 See 32 FR 62413 ("In order to account for the changes, USCIS would create a reserve of registrations to pull from in the scenario that a sufficient number of selected registrants do not file petitions, and more registrations need to be added to the selected pool.").
8 See 32 FR 62417 ("DHS is proposing to set a filing period of at least 60 days to ensure that the petitioner has adequate time to prepare and file the H-1B petition. If, for example, a petitioner's selection notice dated March 22, contains a 60-day filing period beginning on April 1 and ending on May 31, the petition may not be filed before April 1 and must be filed no later than May 31, or USCIS would reject the petition. If the last day of the 60-day filing period is a Saturday, Sunday, or legal holiday, the petitioner would have until the following day that is not a Saturday, Sunday, or legal holiday to file the petition.").
9 Id. ("A registrant therefore could wait until they have been notified of selection before submitting the LCA to DOL for approval and preparing the corresponding H-1B petition on behalf of the beneficiary named in the selected registration.").
10 See 32 FR 62413 (providing a list of the required information).
11 See 32 FR 62406, Table 1 (Summary of Provisions and Impacts).
12 See USCIS, News Releases: DHS Announces Final Rule for a More Effective and Efficient H-1B Visa Program, USCIS News (Jan. 30, 2019); see also 84 FR 888 ("Changing the order in which USCIS counts these separate allocations will likely increase the number of beneficiaries with a master's or higher degree from a U.S. institution of higher education to be selected for further processing under the H-1B allocations.").
13 See USCIS, USCIS Announces Implementation of H-1B Electronic Registration Process for FY2021 Cap Season, AILA Doc. No. 19120690 (Dec. 6, 2019).
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