New H-1B Cap Pre-registration System

In the U.S. immigration world, April 1 is typically known as "H-1B Cap Day," the day the government begins accepting petitions for cap-subject H-1B employment for the next fiscal year (FY2021).

This upcoming year, however, there's a possibility that the filing process will significantly change and first require completion of an online, electronic registration form.

Here is some important information about the potential changes to the H-1B visa program:

What is an H-1B visa?

The H-1B visa is a temporary visa for employers seeking to fill a "specialty occupation" - which generally requires the foreign national to possess a bachelor's degree or higher. The duration of an H-1B visa is typically three years and can be extended an additional three years for a total of six (and sometimes longer under certain circumstances).

How has the system to obtain an H-1B visa worked in recent years?

The U.S. government caps the number of H-1B visas granted each year to 85,000 - 20,000 of which are allocated for foreign nationals who hold a U.S. master's or doctorate degree.

The United States Citizenship and Immigration Services (USCIS) typically receives significantly more than 85,000 H-1B petitions. Under the existing system, employers are required to prepare and file petitions for all applicants during the filing window, which begins April 1 and continues for the next seven days or until the cap is reached. When the USCIS receives more than 85,000 H-1B petitions during the filing window, the agency uses a computer-generated lottery system to select a "sufficient number" of petitions to process and adjudicate.

USCIS will reject and return the petitions not selected in the lottery, along with filing fees, forcing employers to secure alternative visas for such candidates.

What changes are expected in the process?

The USCIS is planning to implement a registration system for the H-1B cap-subject filing process, subject to publishing a final rule and continual technical testing. Through the registration process, employers will be required to register each individual potential H-1B recipient before the April 1 window, using a basic, online form.

USCIS will then use the computer-generated lottery to select enough potential H-1B recipients to reach the cap. If an employee's registration form is picked, employers will then, and only then, prepare and file the entire H-1B petition for the selected registrant(s) during a 60-day filing window.

Under the new proposed procedure, employers will therefore only file complete petitions for those registered applicants already selected in the lottery. In the existing system, employers submit an entire petition in order for each applicant to be eligible to enter the lottery.

While the cap continues to remain at 85,000, the USCIS will likely select 95,000 - 100,000 applications from the registration pool to "account for denials, rejected petitions and the likelihood of some employers to change their minds and not file a petition," according to the National Law Review.

The pre-registration period will open at least 14 calendar days prior to the first day of filing each year.

What information will be on the registration form?

The DHS released a sample H-1B registration form in late September which asks for the following information:

  • Employer's name, identification number (FEIN), mailing address and basic contact information
  • Authorized representative of employer's name, job title and contact information (phone number and email address)
  • Full legal name, background biographical information, passport number and education of proposed H-1B employee
  • Proposed start date for H-1B employee
  • Employer's attorney or representative (if applicable)
  • Any other information requested by the USCIS

The information included on the sample registration form has not been finalized by the USCIS and is subject to change.

Is there a fee associated with completing an online pre-registration form?

The USCIS announced in early September it was preparing to charge $10 for each electronic registration. The agency said the fee was necessary because it "must expend resources to implement and maintain the H-1B registration system."

Will the registration system be in place by April 1, 2020?

The USCIS has announced that it intends to confirm by March 20, 2020 whether or not the registration process and technical requirements are finalized for FY2021.

What was the reaction to the potential changes?

The registration requirement should mean a more cost-effective H-1B cap season for employers. Additionally, it should provide employers with more certainty as they will be able to better and more timely predict how many H-1B employees they are likely to be able to employ in the fiscal year.

However, employers and practitioners are concerned about execution details and the framework for the decision, particularly the very compressed time period between the anticipated decision deadline of March 20 and the application window of April 1. Applicants who elect to delay preparation of petitions in anticipation of the new policy will be exposed to intolerably high risk if UCSIS decides in late March to maintain the existing procedure for FY2021.

Fifteen different groups - including the Association of American Universities, the American Immigration Lawyers Association, the American Council on Education, and Compete America - penned a letter to acting USCIS director Kenneth Cuccinelli in mid-August 2019 urging the organization to "confirm by September 15, 2019 whether it intends to mandate use of the electronic registration system for the FY2021 H-1B cap filing season that begins on April 1, 2020."

The letter also called for the USCIS "to solicit additional participation and feedback from a wide range of interested stakeholders before the electronic registration system is operationalized."

USCIS did not announce its final plans regarding the electronic registration process for the FY2021 H-1B cap season before the September 15 deadline requested in the groups' letter.

How should employers handle the process with all the uncertainty?

Because H-1B cap-subject petitions must be filed in the window beginning April 1, 2020, a late USCIS procedural decision imposes a very tight, unrealistic and risky timeline in the event the USCIS announces that the registration process and technical requirements are not finalized (thus necessitating preparation of a full H-1B filing).

Given this uncertainty, the attorneys at Garfinkel Immigration Law Firm strongly recommend proactively preparing for the FY2021 H-1B cap filing window by completing full H-1B petitions if the new registration system is not functional by January 24, 2020. This will best position your organization and its employees for a successful H-1B cap season.

Are there any other actions you should take?

Garfinkel Immigration Law Firm continues to monitor the situation closely and will reach out and advise as it impacts our clients.

As always, please do not hesitate to call us at 704-442-8000 or contact us via email with any questions.

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