The New H-1B Cap Electronic Registration System: What Employers Should Expect in 2020

Faegre Baker Daniels
Contact

Faegre Baker Daniels

Significant changes are expected for the upcoming H-1B cap process in 2020. With the holiday season quickly approaching, this is the time for employers to review their H-1B cap cases and processes to determine what internal changes may need to be made in light of the proposed external changes by the U.S. Citizenship and Immigration Services (USCIS).

The biggest change by USCIS could be the implementation of the electronic registration or pre-registration system for the H-1B cap process, including the impact on the cap selection/lottery, which has been required for the last several years. The open question is whether USCIS can implement its new system and technology in time (by mid-February 2020) to meet the regulatory time frame established in the final rule.

Overview of Electronic Registration (Pre-Registration) for H-1B Cap Cases

The final rule outlining the new H-1B cap electronic registration system and process was published on January 31, 2019 and was effective on April 1, 2019. According to a press release from USCIS on November 7, 2019, “USCIS is slated to implement the registration process for the fiscal year 2021 H-1B cap selection process, pending completed testing of the system. The agency will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made, and USCIS will offer ample notice to the public in advance of implementing the registration requirement.”

Additionally, Ken Cuccinelli, the former acting director of USCIS, stated at a recent conference that he believes the government will be ready to implement the new system and that USCIS should announce by the end of 2019 whether this new tool for electronic registration will be ready.

Although it is not clear when the electronic registration process will be finalized and implemented, we do know that the actual registration process appears to be straightforward – requiring basic information about the company and the beneficiary. However, employers must still fully analyze each case prior to registration to ensure the cases they are submitting would be approvable if chosen in the lottery.

Important details of the new H-1B cap selection electronic process include:

  • USCIS will establish a designated registration period. This mandatory registration process will start before April 1. Pursuant to the new rule, in each fiscal year, the registration period will begin at least 14 days prior to April 1. The registration period will last for at least 14 days. The final rule also provides that USCIS must provide a 30-day notice period of the opening of the registration period, that USCIS will post this information on their website and that an official notice will be published in the Federal Register. Pursuant to this regulatory timeline, the registration period must be announced no later than February 18, 2020.
  • H-1B cap pre-registration and the selection process would all be conducted electronically. With the new system, all petitioners would file a registration relating to each prospective H-1B cap beneficiary they intend to hire. Only beneficiaries selected in the registration process would then require petitions to be filed on their behalf by the petitioning employer. Registration information would include employer name, employer FEIN, employer mailing address, authorized representative’s name, title and contact information, and beneficiary’s name, birthdate and country of birth, country of citizenship, gender and passport number. If represented by an attorney, a G-28 must be submitted electronically. Employers may only submit one registration per beneficiary and will be required to make an attestation confirming they intend to file an H-1B petition for the beneficiary if the pre-registration is selected/receipted. If multiple registrations are filed for the same beneficiary for the same employer, all registrations for that beneficiary will be deemed invalid. If USCIS determines it has received more registrations than needed to reach the cap, USCIS will close the registration period and will randomly select a sufficient number of registrations needed to meet the cap.
  • USCIS will send notification of electronic registration receipt and H-1B cap selection. In the materials provided to date about the electronic registration process, USCIS has indicated that some type of “receipt” will be generated when the basic information is included in the electronic registration system for the $10 fee. The rule also provides that there will be some type of notice to those selected in the electronic H-1B cap selection process with further details about the filing period and other requirements. We expect USCIS to provide more detail about this “official” notice of cap selection as it is unclear whether this will be in the form of an electronic notification or paper receipt notice. Again, if the new electronic registration for H-1B cap selection is implemented to be paperless and more streamlined for USCIS, we would expect that the same would be true for notification to employers whose H-1B cap employees were selected for petition filing.
  • USCIS will establish a filing period. Once notified, petitioning employers will have 90 days to file H-1B petitions for beneficiaries selected under the H-1B cap. This is a change from the proposed rule which only would have allowed 60 days to file. Again, the documentation to be provided after such a selection would provide the timing/deadline for the H-1B cap petition filing period.

Additional highlights of the new electronic registration process include:

  • USCIS may reopen the registration process to ensure cap numbers do not go unused. Additionally, if the cap is not met during the initial registration period, USCIS will accept all registrations and will continue to accept registrations until the cap has been met.
  • Unselected registrations will remain “on reserve” in the system. These registrations will be selected if USCIS determines the cap has not been met.
  • The final rule does not include a staggered filing period as initially proposed. This ensures that foreign students in F-1 status will still be able to take advantage of “cap-gap” work authorization. Under the current “cap-gap” rule, to maintain valid status and F-1 OPT work authorization through September 30, the H-1B cap petition must be filed by the time of the current F-1 OPT work authorization expiration. Under the new electronic registration rule, this means that if the F-1 OPT work authorization will expire on May 1, 2020, the H-1B cap petition (once selected and notified under the new electronic system) must be filed no later than April 30, 2020 to ensure the continued F-1 “cap-gap” status and work authorization. In this scenario employers would not be able to take advantage of the full 90-day filing period.
  • Registrations will be selected in reverse as compared to how lottery selections have been made in the past. USCIS first counts all cap-subject H-1B registrations, including those that may be eligible for the advanced degree exemption, toward the regular cap until the projected number of H-1Bs needed to meet the regular cap (65,000) is reached. Once the regular cap projected number is reached, USCIS then counts those petitions eligible for the advanced degree exemption and not selected under the regular cap toward the projected number needed to reach the advanced degree exemption allocation (20,000). This part of the electronic registration rule was implemented for last year’s H-1B cap selection process.
  • USCIS will closely monitor whether selected registrations result in the filing of H-1B petitions.

USCIS Imposes $10 Filing Fee for Electronic Registration

On November 8, 2019, the USCIS issued a final rule that will require a $10 nonrefundable fee for each H-1B registration submitted by petitioning employers implementing the electronic registration system.

The final rule is effective December 9, 2019. The fee will be required when registrations are submitted. USCIS expects this fee will support the new electronic registration system to make the H-1B cap selection process more efficient for both petitioners and the agency.

H-1B Cap Reminders

With the H-1B cap, only a limited number of H-1B work visas are available each year. Under the regular H-1B cap, 65,000 H-1B visas are available. An additional 20,000 are available under an exemption for foreign nationals (usually F-1 students) who have graduated from a U.S. college or university with a master's degree or higher. Cap-subject H-1B visas become available each year on October 1, and filings with USCIS can be made no sooner than six months in advance.

The H-1B visa is the most popular visa category for employers to obtain work authorization for key foreign national employees and is available for a wide variety of professional positions, including engineering, biology, computer science, accounting, teaching, sales/marketing and many other professional occupations. Foreign nationals who will fill a professional "specialty occupation" position can qualify for H-1B status. A "specialty occupation" is an occupation that requires at least a bachelor's degree (or the equivalent) as a minimum requirement. The foreign national must have a bachelor's degree (or the equivalent) in the field of specialty to qualify for H-1B status.

It is important to note that not all H-1B cases are subject to the cap. Petitions not subject to the cap include H-1B extensions, petitions to change H-1B employers and petitions filed by institutions of higher education.

Start Preparing Now for H-1B Cap Season

It is anticipated that, as in prior years, the H-1B cap will be met once the registration system opens and the H-1B cap selection process or lottery will again be conducted. Although the registration system will only require basic information about the company and beneficiary, employers should analyze each case to ensure it is approvable. Steps to take before registration may include:

  • Identifying employees for whom a registration will be submitted
  • Analyzing education to see if the beneficiary will qualify under the U.S. master’s degree cap exemption
  • Obtaining credential evaluations for non-U.S. degrees
  • Reviewing and analyzing immigration status
  • Preparing Labor Condition Applications
  • Obtaining detailed job descriptions

Looking Ahead at H-1B Cap Processing - Requests for Evidence to Continue

Due in large part to the “Buy American, Hire American” executive order, there has and continues to be a significant increase in the number of requests for evidence issued in H-1B cases. USCIS frequently asks for additional evidence to show:

  • The position requires a bachelor's degree or equivalent in a related field and is a specialty occupation under H-1B rules
  • The degree held by the candidate is in a field related to the occupation
  • The candidate's education and/or experience is equivalent to a U.S. bachelor's degree
  • The petitioning employer would supervise and control the work of the H-1B employee
  • Evidence from the foreign national to establish maintenance of prior status in the U.S. (e.g. F-1 student status)

Conclusion

This year’s H-1B cap season will likely be one with significant change if USCIS finalizes and implements the electronic registration tool for the filing of H-1B cap cases. If this new H-1B cap electronic system is implemented smoothly without glitches and delays, such a streamlined and efficient process will enhance the H-1B cap selection/lottery process for users and interested parties.

The Faegre Baker Daniels Immigration and Global Mobility team will continue to monitor these issues and will provide additional guidance when available.

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.

© Faegre Baker Daniels | Attorney Advertising

Written by:

Faegre Baker Daniels
Contact
more
less

Faegre Baker Daniels on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.