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USCIS to Implement H-1B Registration Process

10 Dec

On December 6, 2019, USCIS announced that a new registration process will go into effect for Fiscal Year 2021 H-1B petitions filed under the Fiscal Year 2021 H-1B quota. USCIS plans to publish notice in the Federal Register in the coming weeks. The change was originally proposed in December 2018, but USCIS suspended its application during the Fiscal Year 2020 H-1B filing season.
 
Before FY-2021 H-1B cap petitions can be filed, employers seeking to file petitions must register and pay a $10 registration fee for each petition the employer seeks to file. USCIS will apply a random numeric selection process (“lottery”) to the registrations to select which petitions may proceed with filing.
 
The registration period will take place from March 1, 2020 through March 20, 2020. Because employers may not substitute employees into the registrations once selected, employers must identify H-1B candidates earlier this year than ever before.
 
USCIS has indicated that only petitioners who plan to follow through and file petitions for a beneficiary should enter the lottery for that beneficiary. As originally proposed the rule would require that petitioners attest during the registration process that they intend to file an H-1B petition for the specific beneficiary in the position indicated in the registration. Filing for a different position would not be permitted, so it will be necessary to determine the precise position in advance. Further, there will be a limited window for filing petitions once the lottery is complete. This means that each petitioner must be prepared to follow through quickly with filing a qualifying H-1B petition after the lottery is complete. 
 
Employers will need to work diligently with their Foster immigration attorneys in order to initiate H-1B petitions early in 2020, and to prepare for the FY-2021 filing season in much the same way as prior seasons. The key difference is that there will be a registration step before filing. The principal benefits of this new procedure will be: 

  • Employers and employees will receive earlier, pre-filing knowledge of selection.
  • Instead of paying filing fees and then receiving them back as reimbursements when a petition is rejected, petitioners will not incur government filing fee expenses for cases unless they are selected in the pre-filing registration process.

Some disadvantages of the new process include:

  • Some F-1 students who previously would have benefited from a “cap gap” extension of their Optional Practical Training employment authorization while waiting for petition acceptance or rejection will no longer have that benefit.
  • The short time frame for filing after registration will require employers and their attorneys to do the bulk of the petition work in advance, meaning the government, not employers, are most benefited by the purported convenience and cost-savings of the new registration procedure.