On December 6, U.S. Citizenship and Immigration Services (“USCIS”) announced the implementation of the electronic registration process for Fiscal Year 2021 Cap Season. In other words, new H-1B filings that will take place starting on April 1st, 2020 for start dates commencing October 1st, 2020. Under this new process, employers or their authorized representatives, must submit a registration and pay the associated $10 registration fee for each proposed H-1B worker. Only selected registrants are permitted to submit a cap-subject petition for the FY 2021 filing season. The initial registration period will run from March 1st, 2020 through March 20th, 2020. Thereafter, if the number of registrations received exceed the quota, (which is expected given prior years’ numbers) USCIS will conduct the “registration lottery” and randomly select the number of registrations needed to reach the H-1B numerical limit (65,000 regular-cap and 20,000 master’s-cap cases). After selections have been announced, presumably via email, those selected will have 90 days to submit H-1B cap-subject petitions starting April 1st.
In contrast to historical cap seasons, where petitions were fully prepared and had to be filed within the first five business days in April, the implementation of the H-1B electronic registration system will result in new options for our clients, potentially reducing costs and introducing efficiencies. We are attempting to give our clients options on how they wish to handle their H-1B cap case filings. Know that USCIS has already stated that they will investigate cases where they feel the program may be abused, and they have already noted that companies who fail to file H-1B cases for lottery winners must have a lawful excuse for not filing. For this reason, we will at a minimum review the likelihood of success and determine the sufficiency of the application at the same time we complete the necessary registration step. We will also ensure we have all the necessary information and documents to move the case forward, as well as draft the Labor Condition Application (“LCA”) so it is ready for filing. By taking these initial important steps we will be in a position to efficiently complete the necessary drafts for final review before filing. If USCIS announces the lottery results on March 27th, there will be very little time available to finalize and file all of our anticipated lottery winners on March 31st. So, it is important to communicate priorities in advance so clients are not upset or surprised by the timing of their case filing.
These are the two approaches Brown Immigration Law (BIL) will be offering our clients in meeting the registration and filing deadlines:
The Two-Step Approach differs from the One-Step/Traditional Approach by strategically separating what used to be a “one-step” process and limiting the amount of work initially done until we know if the application is to be accepted in the lottery. The obvious benefit of the two-step approach is financial – if an H-1B registration is not selected, the employer would not need to incur the additional expense of the H-1B petition preparation and submission. On the other hand, the expediency offered by the One-Step/Traditional Approach may be necessary for certain cases with sensitive timing issues. Our firm will work with each client to determine which approach may be most appropriate for a case or client.
We will continue to provide updates and guidance as USCIS provides additional details on this new process.
Who needs to register for?
Employers should consider filing H-1B petitions for any current nonimmigrant employees or pending hires who may eventually require an H-1B for continued employment (which with the possible passing of the Fairness Act means we recommend most employees be considered). Foreign nationals who may benefit from H-1B sponsorship include: F-1 students or J-1s who require continued work authorization after their employment authorization or program ends; foreign nationals holding temporary status such as L-1, TN, E, O, etc.; and employees who are work authorized through their dependent status (H-4 EAD or L-2 EAD). We are advising all H-4 EADs to seek an H-1B this year. Virtually anyone not on an H-1B already may benefit.
What are the immediate steps that should be taken?
Employers should assess whether any current employees or pending hires would benefit from obtaining H-1B status. Our legal team is available to assist with this process, and we will separately be reaching out to each client to see if our clients have identified candidates for the registration.
Should we elect the One-Step/Traditional Approach or the Two-Step Approach?
The Approach utilized will ultimately depend on case needs and company preference. As discussed above, in more time-sensitive cases, we recommend the One-Step/Traditional Approach. Generally, for F-1 employees whose Optional Practical Training (OPT) expires in April or during the summer and they have no eligibility to extend past September 30th the company must file an H-1B cap petition prior to the expiration of their OPT in order to take advantage of the cap gap rule. The cap gap rule extends the status of the F-1 student through September 30th. If the student is on OPT, the student will continue to be work authorized for the same duration. Thus, in these circumstances, we advise the One-Step/Traditional Approach. Of course, our firm will work as efficiently and expeditiously as possible for all cases irrespective of the approach utilized; but, due to the volume of cases filed, One-Step/Traditional Approach cases will receive priority in order to meet our time commitment to our clients who have paid to get those cases fully drafted for March 31st, 2020.
Increasingly we are hearing that many companies are worried that given this is the first year for registration the chance of government error is high – for this reason many companies are using the One-step filing approach.
What information will be required in order to submit an electronic registration?
The electronic registration system will require basic information about the employer (name, FEIN) and the beneficiary (name, dob, country of citizenship). In addition to this information, we will request all necessary documents from the beneficiary and company to prepare the filing.
Does it matter when an electronic registration is submitted?
No – USCIS will conduct its random selection/lottery after the registration window closes on March 20th. Thus, it would make no difference whether a registration was submitted on March 1st or March 19th.
Is there an advantage if the H-1B candidate has a U.S. master’s degree or higher?
Yes – under USCIS’ reverse lottery selection, the regular-cap lottery will run first and USCIS will identify the first 65,000 winners. Any master’s cap cases that did not get selected will be eligible for a second master’s-cap lottery for the 20,000 H-1Bs reserved for U.S. advanced degrees.
What are the overall chances of selection into the H-1B Cap?
For the most recent cap season (FY 2020), USCIS confirmed receipt of 201,011 H-1B petitions but likely selected over 105.00 to ensure they filled the quota. Hence, the overall chance of selection for the last cap season was 50% for FY 2020. It is hard to know for certain where the numbers will go this year – we do anticipate more applicants this year given the lower cost of entry with registration.
Will Premium Processing be available?
USCIS has not announced whether Premium Processing will be available. We are hopeful that they will allow Premium Processing again this year. Of course, this is another determining factor, as the ability to speed up a case by simply paying an additional fee helps protect clients against any potential delays in processing. A conservative approach to this issue would assume that premium will not be available and push clients to ensure all cases are predrafted and filed on March 31st; however, that approach would also eliminate any potential cost savings created by treating this as a two-step process. In any event, as soon as we get information on Premium Processing we will share it with our clients.
We look forward to supporting our clients as they work through the anticipated changes to the H-1B lottery process.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **