On November 8, 2019, the Department of Homeland Security (DHS) published a final rule to establish an electronic registration program for H-1B petitions that requires a $10 registration fee for the April 2020 cap season. One of the main goals of the regulation is to conduct the lottery before accepting petitions so that employers know in advance if the case will be selected in the lottery before submitting complete H-1B filings with USCIS. The other major change was a reverse order in how the lottery was conducted with the goal of increasing the chances of U.S. Master’s degree holders of winning an H-1B number. Click here to review our related blog.
On November 4, 2019, the Acting Director of USCIS Ken Cuccinelli stated that he has a “fairly high degree of certainty” that USCIS will be ready to implement the tool for the upcoming H-1B cap season, and that he expects USCIS will make a formal announcement “by the end of the year”. However, we continue to await formal announcement as the electronic registration website is still undergoing beta testing and is not yet active. USCIS may yet again suspend implementation of the H-1B registration program for the upcoming cap season, however employers are advised to proceed as if the program will be implemented for the upcoming cap season.
This Q&A is prepared to provide employers with information on how to prepare for the registration process if it is implemented for the April 2020 cap season.
Question: What is H-1B cap registration?
Answer: It is a USCIS system to monitor the number of H-1B cap petitions submitted and to conduct the H-1B lottery before the petition is submitted.
Question: Who is covered by this new rule?
Answer: The registration is only for prospective cap-subject petitions (i.e. not for cap-exempt employers such as universities or qualified research institutions or, employees who have been already counted against the cap).
Question: When will the registration period start?
Answer: USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.
Question: What is the government’s filing fee to register?
Answer: There will be a $10 government filing fee.
Question: What information is required to register?
Answer: The following information must be included in the registration:
- Full name
- Date of birth
- Country of birth
- Passport number
- Employer attestation that there is a bona fide job offer and it intends to file an H-1B petition-meant to deter companies from gaming the system
Question: How many registrations can be submitted for each beneficiary?
Answer: Each employer can submit one registration for one beneficiary. Employer must submit a separate registration for each beneficiary it seeks to register and absolutely no duplicates will be allowed. Please note that multiple employers can submit one registration on behalf of the same beneficiary.
Question: What happens if there are duplicates submitted for each beneficiary?
Answer: If an employer submits a duplicate or multiple registration for the same employee, all of the registrations for the employee will be rejected. However, this does not prevent the same beneficiary from having multiple employers submit registration forms on their behalf.
Question: Is information about the offered position needed to register?
Answer: No, however, it is important to assess the requirements for the position and the qualifications of the employee to ensure that a non-frivolous H-1B petition will be filed.
Question: Is the employer required to establish eligibility for H-1B status when submitting the registration?
Answer: No, if the petition is selected under the lottery the employer will be required to provide information about the company and the offered specialty occupation.
Question: Is a Labor Condition Application (LCA) required to be filed with Department of Labor before the registration?
Answer: No, but it would be advisable to proceed with LCA preparation including determining the prevailing wage, posting, and filing with the DOL before registration occurs to ensure the company has a certified LCA if selected and submission of the application can occur within a short time of notification.
Question: Does the employer get a receipt upon completion of a registration?
Answer: No, a confirmation number will be assigned which is not the same number as the USCIS receipt number.
Question: How will the lottery be conducted?
Answer: USCIS will first conduct the lottery for the 65,000 numbers and include all registrations. USCIS will then conduct a second lottery for the 20,000 numbers reserved for U.S. advanced degree holder registrations. This change is designed to increase the chances of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to an estimated 16% (or 5,340 workers).
Question: What does the employer do once they receive information a beneficiary has won the lottery and have been allotted an H-1B visa number?
Answer: The next step after the lottery has been conducted is for the employer to file the petition. Employers have only 90 days to file the petitions for their selected employees and the first to file will be the first to be adjudicated.
Question: Because of the low barrier to entry by paying a nominal fee of $10 per registration, what measures has USCIS put in place to deter frivolous applications?
Answer: USCIS has confirmed it intends to monitor the registration system for employers who submit a large number of H-1B registrations, but file only a few selected petitions at a significantly lower rate.
Question: Can an attorney submit the registration on behalf of the employer and beneficiary?
Answer: Yes, attorneys will be able to register on behalf of their clients, with Form G-28, Notice of Entry of Appearance as Attorney.
Question: If the beneficiary is not selected in the lottery, is there still a chance?
Answer: All registrations will receive a confirmation receipt. If the registration is NOT SELECTED, it is placed on a reserve list, in case new numbers become available.
Question: How are the registration fees paid?
Answer: Payment must be received on the government website at www.pay.gov via ACH or credit card.
Question: Will the government accept cashier’s check or money order for the registration fee?
Answer: No cash, certified (bank) checks, or money orders are prohibited
Question: Will registration happen this year?
Answer: We do not know yet but as it was suspended last year and USCIS is currently undergoing beta testing, it could be announced at the end of this year.
Question: If announced could it later be suspended?
Question: What is the best course of action while we wait for guidance on when H-1B registration will be implemented?
Answer: Employers should determine the beneficiaries they want to include into the H-1B lottery. WR will conduct in-take eligibility assessments, collect all the documentation needed, obtain equivalency evaluations and file the Labor Condition Applications (LCAs) for all cases that will be registered.
Question: What is the benefit of preparing the documents and LCA before notification that the beneficiary was selected under the lottery?
Answer: Applications submitted at the beginning of the 90-day period will be adjudicated first, and important OPT cap-gap planning is required to minimize interruptions in work authorization before October 1. Careful contingency planning for cap-gap cases is needed as registration applications will not result in cap-gap benefits unless they are selected. Employers must review all cases thoroughly now and ensure the cap-gap cases are timely filed once the window opens.
Question: The beneficiary won the lottery for Employer A. Can the beneficiary transfer that lottery registration to Employer B?
Answer: No, H-1B lottery registrations are non-transferable. Each employer and each beneficiary must have a lottery registration and cannot be transferred to another employer or another Beneficiary.
Question: What other strategic consideration do employers need to consider?
Answer: It is advisable that employers advance their recruiting timeline by at least three months to identify beneficiaries who will need H-1B cap sponsorship by late December/early January 2020.
For more information REGISTER HERE for our January 8th, 2020 H-1B Webinar.
If you or your employer are considering applying for an H-1B visa petition, please contact your WR professional now by calling 1-800-VISA-LAW and asking for attorney assistance, or email us at firstname.lastname@example.org.
*Access the H-1B-Lottery-Changes-11.25.2019 PDF in its entirety.