H-1B Cap Electronic Registration: March 1-20, 2020

Tonkon Torp LLP

Tonkon Torp LLP

USCIS has announced that it will utilize a new electronic registration process for FY2021 H-1B cap petitions. Registrations must be submitted from March 1 through March 20, 2020. USCIS will charge a $10 registration fee. We recommend that employers review upcoming hiring needs to determine as soon as possible if new H-1B petitions will need to be filed under the FY2021 quota for potential employment start dates of October 1, 2020.

Registration Details
Registration will require basic information such as information about the employer, position offered, sponsored foreign national, and whether the foreign national holds a U.S. advanced degree. This new electronic registration procedure means that employers will only need to complete H-1B petitions for those registrations selected in the lottery. Therefore, the electronic registration procedure should result in time and cost savings for employers. While demand for new H-1B visas is always uncertain (though it generally follows labor market conditions), the new electronic registration system may result in much greater demand for H-1B registrations, thereby reducing the likelihood of selection. Only one registration per each employer-individual combination is permitted.

Post-Registration Period
Based on past demand and the current labor market, a lottery will likely be held for the registrations received. If selected pursuant to the electronic registration process, employers will be provided at least 90 days to file an H-1B petition. USCIS may, in its discretion, provide a longer period of time for filing an H-1B petition as indicated in the filing window included on the selection notice. Although USCIS has not stated exactly when registrations will be reviewed and a lottery held, this will likely be performed prior to April 1, 2020, to permit filings to begin on or about that date.

Next Steps
We recommend that employers review upcoming hiring needs as soon as possible to determine if new H-1B petitions will need to be filed under the FY2021 quota for potential employment start dates of October 1, 2020.

In your review, we recommend considering the following:

  • Whether the company employs any foreign nationals who will need (or may benefit from) a change to H-1B status. Examples include: F-1 and J-1 students, TN NAFTA professionals, L-1B specialized knowledge transferees, E-3 Australian specialty occupation professionals, and individuals with certain types of employment authorization documents (EADs).
    • Although the Trump Administration has not yet issued proposed regulatory changes, we anticipate the Administration may issue rules to eliminate the STEM OPT EAD as well as H-4 EAD programs.
  • If there are any prospective employees the company wishes to employ beginning October 1, 2020 or later who require a new H-1B petition. Example: recruiting someone outside the United States who requires an H‑1B visa to work for the company.

H-1B Cap Details
All “new” H-1B petitions are subject to an annual quota, or “cap” of 65,000 regular H-1B visas, and an additional 20,000 H-1B visas reserved for holders of advanced degrees (master’s or higher) from accredited U.S. universities. New cap H-1B petitions are generally required for individuals previously not counted against the cap (with limited exceptions). New cap H-1B petitions are not required for H-1B extensions and most H-1B changes of employer.

Forecasts for FY2021 Cap Season:

  • Requests for Evidence (RFEs). We anticipate the issuance of post-filing RFEs to remain high, which has been the case under the Trump administration. This is particularly true for entry-level workers and certain occupations. USCIS has reported RFE rates of over 60% for new H-1B petitions.
  • Premium processing. It is unknown whether premium processing will be made available for FY2021 H-1B cap petitions. In immediate past fiscal years USCIS has eliminated premium processing for certain H-1B categories then phased in availability over time. As a result, the availability of premium processing will be closely monitored. USCIS regular processing times for H-1B petitions has approached 11+ months, resulting in hardships for employers and foreign nationals. Given recent USCIS practice, we predict that premium processing will be restricted for FY2021 H-1B cap filings at the outset.
  • Demand. As stated above, we expect the demand for H-1B visas to continue to be high this year given low unemployment rates. We also expect that the decreased costs associated with the new electronic registration system will result in increased demand.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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