Law stated as of 14 Feb 2020 • USA (National/Federal)
US Citizenship and Immigration Services (USCIS), an agency in the Department of Homeland Security (DHS), is implementing its new registration process for petitioners seeking to file H-1B cap cases in the FY2021 cap season. The registration period runs from March 1 through March 20, 2020.
On December 6, 2019, US Citizenship and Immigration Services (USCIS) announced it is implementing its new registration process for petitioners seeking to file H-1B cap cases in the FY2021 cap season.
The registration period runs from March 1 to March 20, 2020. Employers should gather information about employees or applicants for whom they will or might sponsor for a cap-subject H-1B so they are prepared when the registration period opens.
The H-1B Cap
H-1B visas are popular with employers because of their broad applicability, but the limited availability on new H-1B petitions each year creates pressure on employers seeking to employ foreign workers.
Creates an H-1B registration program for employers seeking to file H-1B cap-subject petitions. The goal of the program is to alleviate the burden on USCIS offices and employers and their counsel in preparing and filing H-1B petitions with less than a 50% chance of selection. The final rule suspended the registration for the FY2020 cap season that began on April 1, 2019, to provide time for Department of Homeland Security (DHS) to develop and test the registration system. The registration is being implemented for the FY2021 cap season. See New Registration Requirement.
Alters the selection process if the DHS receives more H-1B registrations than there are available H-1B visas. The new process maximizes the likelihood that petitions for H-1B workers with a US master's or higher degree are selected under the regular cap as well as the advanced degree exemption (commonly called the master's cap). The new selection system is effective on April 1, 2019. See H-1B Cap Selection Process.
New Registration Requirement
The Final Rule requires that the electronic registration process:
Start at least 14 days before April 1st, the date on which H-1B petitions generally can be filed for the new fiscal year (which begins October 1st), and last at least 14 days.
Is mandatory and conducted through the USCIS website.
Under the Final Rule, USCIS will announce on its website:
At least 30 calendar days beforehand, the initial registration period for the upcoming fiscal year. The initial registration period will also be published in a Notice in the Federal Register.
The final registration date in any fiscal year.
Any subsequent reopening or reclosing of the registration period.
To prevent speculative or placeholder registrations, petitioning employers:
May submit only one registration for the same beneficiary during a fiscal year.
Must attest to their intent to file an H-1B petition for the beneficiary in the job for which the registration is filed.
On December 6, 2019, USCIS announced that the FY2021 registration period will run from March 1 through March 20, 2020. If enough registrations are received to satisfy the cap, USCIS will run the random selection after the registration period closes and before March 31, 2021. Only those with selected registrations may file a cap-subject H-1B petition. See H-1B Cap Selection Process.
USCIS expects to provide detailed instructions on how and where to submit H-1B registrations before March 1st.
In the event USCIS receives more registrations than there are available H-1B visas, the Final Rule changed the order in which registrations are counted towards the projected number needed to reach the H-1B allocations. Historically, USCIS counted petitions filed for beneficiaries with a master's degree or higher under the H-1B advanced degree exemption first until the projected number of petitions needed to meet the advanced degree exemption allocation (20,000) was reached, before beginning to select petitions filed for the regular cap (65,000). Under the Final Rule:
USCIS first selects the number of registrations estimated to meet the regular H-1B cap from the entire pool of registrations.
Once the regular cap projected number is reached, USCIS then counts registrations for petitions that are eligible for the advanced degree exemption but were not selected under the regular cap toward the projected number needed to reach the advanced degree exemption allocation.
If selected, a petitioner will have a filing period of at least 90 days to prepare and file the petition.
Employers should also be aware that the H-1B visa classification continues to be the object of criticism and stringent review by the current administration. Policy changes instituted during 2017 included scrutiny for entry level jobs and protecting US workers from discrimination favoring foreign workers.
Practical Law has a collection of resources to help employers develop strategies for preparing and filing H-1B petitions for their foreign workers. For more information and links to these resources, see The H-1B Visa Classification Toolkit.
On January 9, 2020, USCIS issued a notice formally announcing the implementation of the registration system for H-1B cap-subject petitions. The notice also provides detailed description of the registration process including that:
The initial H-1B petition registration period runs from March 1 to March 20, 2020.
H-1B cap-subject petitioners must register electronically with USCIS and pay the associated H-1B registration fee before being eligible to properly file an H-1B cap-subject petition for the Fiscal Year 2021.
After the close of the initial registration period, USCIS will select petitioners that will be eligible to file an H-1B cap-subject petition.
On February 14, 2020, USCIS announced that it would not use pre-paid mailers to send out any communication or final notices for fiscal year 2021 cap-subject H-1B petitions, including those requesting consideration under the advanced degree exemption.