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.

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.

The limited availability of H-1B visas is known as the H-1B cap. For more information on the H-1B cap and its impact on employers, see Practice Note, The H-1B Nonimmigrant Visa Classification: The H-1B Cap.

Employers may generally begin requesting new H-1B visas on April 1st, six months before the fiscal year starts on October 1st, and may continue to file cap-subject H-1B petitions until the annual cap is reached. In the past seven years, however, the H-1B cap has been met by April 7th, in the first week that USCIS accepted new H-1B petitions (see, for example, Legal Updates, USCIS Reaches the Regular H-1B Cap for FY2020 and USCIS Announces FY2020 H-1B Master's Cap Exhausted; Random Selection Process Completed).

On January 31, 2019, USCIS issued a Final Rule amending several of its regulations governing the filing and selection processes for cap-subject H-1B petitions (84 Fed. Reg. 888 (Jan. 31, 2019)).

The Final Rule:

The Final Rule requires that the electronic registration process:

Under the Final Rule, USCIS will announce on its website:

To prevent speculative or placeholder registrations, petitioning employers:

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.

Each registration requires a $10 fee (see Legal Update, USCIS Imposes $10 H-1B Registration Fee for Cap-Subject Petitions).

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:

If selected, a petitioner will have a filing period of at least 90 days to prepare and file the petition.

Before filing the H-1B petition, employers must obtain a certified Labor Condition Application (LCA) from the DOL. In October 2019, LCA processing moved from the iCert website to the DOL's new Foreign Labor Application Gateway (FLAG) System. For more information on LCA requirements, see Practice Note, The H-1B Nonimmigrant Visa Classification: Labor Condition Application.

For more information on preparing and submitting an H-1B petition, see Practice Note, The H-1B Nonimmigrant Visa Classification: Filing an H-1B Petition with USCIS.

If approved, the H-1B visa approval allows the foreign worker to be employed by the petitioning employer in the job described in the H-1B petition no earlier than October 1, 2020 (as requested in the petition) for up to three years, with the possibility for further extensions or amendments to the H-1B status (see Practice Note, The H-1B Nonimmigrant Visa Classification: Validity Period of H-1B Approval).

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.

Employers that are unable to file an H-1B petition, or are unsuccessful in obtaining H-1B status for their foreign workers, may find alternative nonimmigrant visa status options in Practical Law's Employer Options When H-1B Visas Are Not Available Checklist.

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:

For more information, see New Registration Requirement above.

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.

For information on preparing and filing H-1B petitions, please see Practice Note, The H-1B Nonimmigrant Visa Classification.