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The New H-1B Cap Registration System: What Employers Should Expect in 2020

| Jan 30, 2020 | Blog

The much-anticipated H-1B registration system will officially begin March 01, 2020, for employers seeking highly educated foreign workers. This new registration process will only impact new H-1B visas that are subject to the annual numerical limitation of 65,000 visas (regular cap) as well as those additional 20,000 visas for beneficiaries with advanced degrees earned at U.S. colleges and universities (Master’s cap). This registration process will not apply to H-1B transfers or extensions of status. Also exempt from this registration process are the 6,800 H-1B1 visas set aside from the regular cap for Chilean and Singaporean nationals. Additionally, foreign workers employed by institutions of higher education or affiliated non-profit, and those workers employed at a non-profit or government research institution are exempt from the registration process.

A new electronic registration process for cap-subject workers

Under this new process, employers seeking H-1B workers subject to the FY 2021 cap, will register online with the United States Citizenship and Immigration Services (“USCIS”). For now, it appears that employers will be using USCIS’s online account called myUSCIS to set up their registrations. Through the employer’s registration account, the employer will file an online form with the agency. This form solicits basic data about the petitioning company and the prospective employee. Employers must complete a separate registration for each prospective employee. If an employer files multiple registrations for the same prospective employee, all registrations for that prospective employee will be invalid.

From start to finish: The logistics of the new H-1B registration process

The registration will be open for a minimum of at least 14 days, depending on the number of registrations received. While USCIS has announced that it intends to close registration on March 20, 2020, the agency will announce the actual close of registration on its website. The cost for each registration is $10, which is non-refundable. Based on the submitted registrations, USCIS will conduct a randomized selection process. Those employers whose registrations USCIS selects will receive an electronic notice from USCIS by March 31, 2020, stating USCIS has selected their registration. Only then will an employer be eligible to file a cap-subject H-1B petition.

Under the new regulations, USCIS must give employers at least 90 days to file the H-1B petition. However, employers may not always be able to take full advantage of this 90-day filing period for the prospective employee to be eligible for cap-gap work authorization. For instance, assume the employer receives notice that USCIS selected its registration on March 31, 2020, technically the employer has until June 29, 2020, to file the H-1B petition for the selected registration. However, if the prospective employee’s F-1 OPT work authorization expires on May 01, 2020, the employer will need to have the H-1B petition filed no later than April 30, 2020, to ensure continued F-1 status and work authorization.

Another novelty for this H-1B season is that USCIS will select registrations in reverse from the previous years. First, USCIS will count all registrations, including those eligible for the Master’s cap, toward the initial 65,000 regular cap limitation. Once the government receives 65,000 registrations, USCIS will conduct its randomized selection process. Those registrations eligible for the Master’s cap that USCIS selects in the regular cap will be added to the pool of registrations for the Master’s cap, and another 20,000 registrations will be randomly selected. USCIS hopes that this will lead to a greater number of H-1Bs going to foreign nationals holding advanced degrees.

Unanswered questions about the new H-1B registration process

While USCIS hopes this new registration system will make the H-1B cap selection process more efficient for employers, many questions still linger. First, the new system may not be able to handle so many users trying to access the registration system at onc. There has been no indication that technical assistance will be available should this type of problem occur.

There is also the question as to whether the registration system will be fair for the small employers. With such a de minimus fee of $10 per registration, those larger employers with deep pockets will flood the system with registrations, especially foreclosing smaller employers’ success in the lottery. Also unclear is whether USCIS will consider a registrant for the Master’s cap if the prospective employee does not meet the degree requirements as of the date of the registration but would at the time of filing the petition. The immigration attorneys at Larson, Lyons & Al-Hamdani will continue to monitor these issues and will be available to provide additional guidance to employers as more information is released.