USCIS overhauls H-1B cap process for 2020
Last week, the U.S. Citizenship and Immigration Services announced that it had completed pilot testing of its new electronic registration tool and would implement it for the H-1B cap season in 2020. The new electronic registration process will significantly change the way that employers file for H-1B workers who are subject to the “cap.”
The new registration process will not apply to H-1B transfer or extension of status petitions, but only to new “cap-subject” petitions each fiscal year.
Background
During each “cap season” filing period – usually the first five business days in April – U.S. employers who intend to hire professional foreign workers submit new H-1B cap-subject petitions to the USCIS. Historically, employers prepared and filed an H-1B petition for each potential worker. If the USCIS received more petitions than its annual quota of 85,000 allotted H-1B visas, the service would run a statutorily mandated lottery to select eligible petitions through a “random selection process.” The petitions that were not accepted for processing would then be returned to the employer.
The new rule
In early 2019, the USCIS issued a final rule making significant changes to the H-1B visa lottery process. The rule required employers to register electronically before submitting cap-subject H-1B petitions. The rule also reversed the order by which the USCIS selected petitions under the H-1B cap, making it easier for candidates to be selected if they had advanced U.S. degrees. The final rule became effective on April 1, 2019, but the USCIS suspended the electronic registration requirement for the last cap season because the registration tool was not ready.
Electronic registration
Under the new registration process, employers now will be required to register each potential cap-subject H-1B worker for the fiscal year 2021 filing period (for periods of employment that would begin on October 1, 2020). The dates to register will be March 1-20, 2020. The preliminary online registration form will request basic information about the prospective H-1B employer and employee. Based on what has been published to date, it is suggested that the basic form will ask for
- the employer’s name, Federal Employer Identification Number, and primary office address
- the name, job title, daytime phone, and e-mail address of the employer’s authorized representative
- the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number; and
- if the beneficiary has earned a master’s or higher degree from a U.S. institution, the degree and institution.
Employers will file a separate registration for each proposed H-1B worker at a fee of $10 per registration.
If the number of registrations exceeds the annual cap of 85,000 visas, the USCIS will make random selections, but only from among the candidates who have been registered during the registration period. If there are not enough registrations, the USICS may continue accepting registrations, or open an additional registration period.
If a registration is accepted by the USCIS, the employer will have 90 days from notification to file its actual petition.
It is important to note that April 1 will no longer be the critical H-1B cap filing date.
What now?
The USCIS has indicated that it “will post step-by-step instructions informing registrants how to complete the registration process on its website along with key dates and timelines as the initial registration period nears....” The agency “will also conduct public engagements and other outreach activities to ensure registrants and interested parties are familiar with the new registration system.”
Because the registration period will open a month earlier than in the past (March 1 rather than April 1), employers are advised to start identifying their potential cap-subject H-1B workers now.
We will continue to keep you posted about the registration process as more information is available.
