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Cora-Ann Pestaina, Jan. 9, 2020
"It’s the year 2020! We celebrate the start of a new decade and are hopeful for good things to come. Will the upcoming H-1B cap season be one of those good things? All we know for sure is that it will be different. Preparing for the cap season can be stressful but we recognize the stressors and, through trial and error, we have developed various coping strategies and mechanisms. But this year, we are not sure what to expect.
As background, the H-1B program allows U.S. companies to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Congress has set a cap of 65,000 H-1B visas per fiscal year. An advanced degree exemption from the H-1B cap is available for 20,000 beneficiaries who have earned a U.S. master’s degree or higher from a U.S. institution of higher education. Each year, USCIS monitors the number of petitions received during the designated filing period and notifies the public when the H-1B numerical allocations have been met.
It was over a year ago, in December 2018, that USCIS first issued a Notice of Proposed Rulemaking announcing a rule that would revolutionize the H-1B cap process. The rule was made final on January 31, 2019 and amended the regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption and setting forth an H-1B registration process. Ever since then, business immigration practitioners have been anticipating (or dreading?) the change. USCIS was unable to implement the registration process during the FY 2020 H-1B cap season but they previously announced that the process would definitely be implemented for the FY 2021 H-1B cap season and on January 9, 2020, USCIS published “Registration Requirement for Petitioners Seeking To File H–1B Petitions on Behalf of Cap-Subject Aliens” announcing that the agency had completed all requisite user testing and is implementing the registration process in advance of the H–1B cap season for FY 2021. Based all USCIS has released thus far, here is what we know about the registration process:
According to the “H-1B Registration Workflow with Payment” that USCIS released in association with the proposed registration fee requirement, it appears that USCIS will require payment of the $10 registration fee through the Pay.gov portal. Employers may submit one combined registration fee payment for multiple prospective H-1B workers at the same time and the registration fee payment can be paid with either a debit or credit card, or with a withdrawal from a checking or savings account. It appears that USCIS will only require information such as employer and beneficiary names, addresses, employer identification number, and beneficiary date of birth and passport information. USCIS has stated that they will not evaluate the “quality” of the registration other than to eliminate duplicate submissions. USCIS recognizes that some employers may be more willing to submit a registration than they are willing to submit a complete H-1B cap-petition with filing fees under the old process. However, USCIS will not have any means to determine whether a registration is meritorious until after it is selected and a petition resulting from such registration is properly filed. Because some registrations will not lead to approved H-1B cap-petitions, USCIS plans to hold unselected registrations in reserve and will conduct additional selections if necessary.
There are still many details yet to be divulged about the registration process but USCIS has promised to conduct outreach and training prior to the initial implementation of the registration system to allow the public the opportunity to familiarize themselves with the electronic registration process. In the meantime, this author believes that it makes the most sense to conduct a complete evaluation of any potential H-1B petition even prior to submitting the registration. For example, there ought to be preliminary discussions on education credentials, education evaluations, occupational classifications, wage levels, job descriptions, proving specialty occupation, etc. all before submitting a registration. It would be a terrible thing for an employer to be notified of a selection only to be later advised that their H-1B petition would likely be denied due to a degree or specialty occupation issue!
While one should anticipate that the new registration system will be up and running, there is still an outside chance that the system might not be ready, or may crash, and employers may at the last minute be asked to file full H-1B petitions in the first five business days of April 2020. Filers must be prepared for all eventualities, and this further underscores the need to ensure that the prospective employees for whom employers will file H-1B petitions must be properly screened for H-1B eligibility and that all available information and documentation is available to file meritorious cases."