The H-1B silly season is upon us!
For this year’s H-1B cap season (known as fiscal year (FY) 2021), USCIS will implement a new registration process, such that employers will not have to file the complete H-1B petition on April 1 as in previous years. Rather, the new process will involve an online registration to enter the H-1B cap lottery with basic information. Only those selected in the lottery will be allowed to file full H-1B petitions with USCIS. As in previous years, Loke Walsh Immigration Law expects USCIS to hit the cap again in April 2020. (In 2019, USCIS received 201,011 H-1B petitions; in 2018, it received 190,098 H-1B petitions; in 2017, it received approximately 199,000 H-1B petitions.)
There are still many details yet to be published by USCIS about the new H-1B registration process, but here is what we know so far:
- USCIS will open an initial registration period from March 1 through March 20, 2020.
- The registration process requires basic information about the H-1B employer and each requested H-1B worker. USCIS has stated that they will not evaluate the “quality” of the registration other than to eliminate duplicate submissions. Since some registrations will not lead to approved H-1B cap-petitions, USCIS plans to hold unselected registrations in reserve and will conduct additional selections if necessary.
- H-1B employers will be able to register multiple individuals in a single registration.
- There will be a non-refundable registration fee of $10 for each H-1B registration submitted by petitioning employers or their authorized representatives. This payment – which can be submitted by the employer or their attorney – can be made by credit or debit card, or from a checking or savings account. It appears that USCIS will require payment of the $10 registration fee through the Pay.gov portal. Employers may submit one combined registration fee payment for multiple prospective H-1B workers at the same time.
- An H-1B employer may only submit one registration per applicant in any fiscal year. If a specific employer submits more than one registration per beneficiary in the same fiscal year (“duplicate filings”), all registrations filed by that employer relating to that applicant for that fiscal year will be considered invalid.
- Nothing prohibits a foreign national from having multiple employers (i.e. different companies) submit separate H-1B registrations for him or her.
- If a sufficient number of registrations are received, USCIS will use a computer-generated random registration selection process (lottery) to select enough registrations to meet the regular cap and the U.S. Master’s cap for FY 2021. Employers with selected registrations will be eligible to file a cap-subject petition only for the applicant named in the registration. An employer may not substitute the applicant named in the original registration or transfer the registration to another employer.
After the Lottery is Completed
USCIS intends to notify applicants with selected registrations from the initial registration period no later than March 31, 2020. After the selection, employers will be notified by USCIS of the exact amount of time allowed for filing the full H-1B petition, which will in all cases be at least 90 days. Once the H-1B petition is submitted, USCIS will then adjudicate the H-1B petition based on the merits of the case.
Please note that any candidates with non-traditional OPT expiration dates (i.e. December graduates with OPT expiration dates in January or February 2020) should apply for an H-1B in 2020. Otherwise, they will have a significant gap in employment authorization the following year (2021) as they are not eligible for cap-gap extension.
Given the highly competitive nature of the H-1B lottery, we also recommend filing an H-1B petition for any “incoming” candidates graduating with a higher degree (starting on OPT after graduation in May/June), as it increases the number of opportunities to apply for an H-1B visa. If unsuccessful applying in 2020 under the regular bachelor’s degree cap, the applicant will have one more chance to file an H-1B application under the advanced degree cap in the following year in 2021.
