Significant Changes In Store For H-1B Filings In 2020

Tarter Krinsky & Drogin LLP
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New regulations proposed by the Department of Homeland Security (DHS) are slated to take effect for the 2021 H-1B cap filing period, which starts on April 1, 2020.

Proposed in January 2019, the new regulations mandate that U.S. petitioning companies register their company and the name and background information of an intended foreign national beneficiary online with U.S. Citizenship and Immigration Services (USCIS). DHS has proposed a fee of $10.00 per each electronic registration. This registration process is not mandated for cap-exempt H-1B petitions, which encompass institutions of research and universities, colleges and some hospitals, which might be affiliated with institutions of research and some other limited exceptions.

The regulations mandate that the registration period will begin at least 14 days ahead of the first day of filing in each fiscal year. Since the annual start date for filing is April 1, the registration period will open no later than March 18, 2020, and it will be announced to the public at least 30 days beforehand – or by February 17, 2020.

Once a case is selected for processing, USCIS will conduct a random selection of all registrations received during the initial registration period. It is expected that the number selected will be greater than the 85,000 visas allotted as USCIS accounts for denials, rejected petitions and withdrawn petitions in calculating the number of petitions it will receive and accept for processing.

The regulations further state that should insufficient petition pre-registrations be received during the initial period to fill the H-1B cap, it will open a registration process for an additional period.

The H-1B start date for employment purposes remains October 1, 2020 – the first day of the government’s new fiscal year. Employers will only be permitted to file one registration request once per foreign national beneficiary and the pre-registration also requires that an employer attest to the fact that it does intend to file the H-1B petition for the specific H-1B beneficiary listed on the registration document. Multiple prospective beneficiaries may not be listed on a single registration form, and employers cannot edit or change the registration once it has been filed with USCIS online.

The information solicited on the pre-registration document includes the employer’s name, Federal Employer Identification Number (FEIN) and mailing address, the employer’s authorized representative/attorney of record, beneficiary’s name, date of birth, country of citizenship, gender and passport number, educational level and confirmation as to whether they have received a U.S. master’s degree and information regarding the employer’s attorney of record.

Should a selection in the pre-registration be successful, USCIS will notify the company and its attorney of record that the employer is eligible to file the H-1B petition within a designated filing period. The notice should also contain information regarding the location where the petition is to be filed, as well as how to file the petition. U.S. employers will be given a 60-day window to file the H-1B petition.

Substitution of beneficiaries will not be permitted, and it is assumed that the H-1B ‘cap-gap’ rules enabling continued employment by the foreign national once their period of optional practical training might expire will remain in place. The ability to travel as a foreign student will remain restricted until the H-1B petition is approved and after October 1, when the H-1B petition is activated.

It is important for U.S. companies and employers to plan in advance for H-1B submissions given the changes that will take place in the first quarter of 2020. It is also smart to consult with immigration counsel to plan ahead for H-1B petition filings to assure that all petitions are documented carefully prior to submitting the pre-registration documentation.

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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