Changes Ahead for H-1B Cap Season

Next year, U.S. Citizenship and Immigration Services (USCIS) is likely to implement its new electronic H-1B cap registration process, and the H-1B cap season as we know it will end. No longer will employers and attorneys be required to prepare entire petitions for every case submitted in the lottery. Instead, employers may enter the H-1B lottery by simply submitting a small amount of information upfront with their electronic registration. If their registration is randomly selected, employers would then file the full H-1B petition.

To participate in the electronic registration process, employers will be asked to provide a few entity- and job-related data points. Specifically, the following information will be required:

1. The employer’s name, employer identification number (EIN), and mailing address
2. The name, job title, and contact information (telephone number and email address) of the employer’s authorized representative
3. The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number
4. Whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education
5. The employer’s attorney or accredited representative, if applicable (a Form G-28 should be also submitted electronically if this is applicable)
6. Any additional basic information requested by the registration system or USCIS

USCIS will use this information solely to select enough H-1B petitions to adjudicate under the annual numerical limitations (the “cap”) and will not review the merit of any of the supplied information. The final rule prohibits duplicate registrations so that employers may not flood the system to maximize their opportunity to have an H-1B petition selected. Also built into the registration process is a safeguard requiring petitioners to attest that they intend to employ the beneficiary. This is intended to deter employers from submitting registrations but not pursuing petitions if selected. The Department of Homeland Security (DHS) plans to use enforcement action if it finds a pattern and practice of employers that make attestations but do not file petitions.

There seem to be varied concerns about the new process. In public comments to the proposed rule, which were summarized and published with the final rule, some opponents argued that electronic registration would make it easier for employers to hire foreign workers and would not prevent outsourcing. USCIS pointed out that registration does not favor foreign workers and that the rule generally favors and prioritizes the higher qualified workers, giving preference to U.S. master’s degree cases. Supporters of the rule expressed that the new program would make it more cost-effective for employers to pursue H-1B employees because it will reduce the amount of work on the front end, and (ideally) it would free up USCIS to create more efficiency within the agency.

Because USCIS has not provided specific details about the implementation of the electronic registration process, there is a great deal of uncertainty around the new system—especially in regard to how much time employers will have to prepare and file the petitions once they have been selected.

This raises the question: how should employers begin to prepare for the H-1B fiscal year 2021 filing season? First of all, USCIS will provide notice in the Federal Register when the electronic registration system is ready for implementation. The agency will also announce the start date for the registration period 30 days prior to opening registration. The registration period will last at least 14 days. If USCIS needs to extend registration to ensure it has received enough petitions to meet the cap, it will make an announcement. DHS initially said that employers would have 60 days to file petitions after notification of selection, but because a number of commenters indicated that the time frame would not allow entities with a large number of cases selected sufficient time to prepare and file petitions, the time frame for filing was extended to 90 days.

The 90-day filing window has led many to wonder whether USCIS will be able to adjudicate cases in time for October 1, the anticipated start date for many H-1B candidates. If registration does not open until March, as is expected, the filing window could extend into June or July—two to three months later than the April 1 filing date used in previous H-1B filing seasons. This concern is further exacerbated by the already-extensive backlogs in USCIS adjudications. Employers will have to decide how much advanced preparation they want to do and how quickly they want to be able to submit their H-1B petitions. Do they want to prepare cases in advance so they can be filed immediately upon notification of selection? Or would they prefer to wait until the H-1B candidate has been selected before preparing the petition and then filing within the 90-day window?

While we cannot know exactly how the new registration process will impact H-1B cap seasons in the future, many are optimistic that it will streamline the filing process. Whatever the case, if the process works as intended, employers are expected to have significantly less documentation to prepare overall to participate in the H-1B cap moving forward.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the development and implementation of the new electronic H-1B registration system and will post updates on our immigration blog as additional information becomes available.

A version of this article was previously published by the American Immigration Lawyers Association.