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The FY 2021 H-1B Electronic Registration Process Explained

By Thomas M Lee
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The U.S. Citizenship and Immigration Services ("USCIS") has announced that it is implementing a new registration process in the next Fiscal Year 2021 H-1B lottery. Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register and pay a $10 H-1B registration fee.The electronic registration process will dramatically streamline processing by reducing paperwork and data exchange, and will provide an overall cost savings to petitioning employers according to the USCIS.

Under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that requires only basic information about their company and each requested worker. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

Historically, employers filed their full, and often voluminous, H-1B cap-subject petitions with USCIS, after which USCIS would select eligible petitions through a random selection process. This process resulted in unnecessary paperwork and incurred mailing costs for both petitioners and the agency.

“By streamlining the H-1B cap selection process with a new electronic registration system, USCIS is creating cost savings and efficiencies for petitioners and the agency, as only those selected will now be required to submit a full petition,” said USCIS Deputy Director Mark Koumans. “The agency completed a successful pilot testing phase, which included sessions with industry representatives, and implementation of the registration system will further the goal of modernizing USCIS from a paper-based to an online-filing agency.”

The USCIS will post step-by-step instructions informing registrants how to complete the registration process on its website along with key dates and timelines as the initial registration period nears. USCIS will also conduct public engagements and other outreach activities to ensure registrants and interested parties are familiar with the new registration system. The agency may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.

The Department of Homeland Security ("DHS") formally created the H-1B registration requirement in the final rule, Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens (PDF), effective on April 1, 2019. DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration system and provide additional details on the process.

On Nov. 8, 2019, DHS published a final rule establishing a $10 H-1B registration fee. The registration fee final rule is effective on Dec. 9, 2019, and will apply to registrations submitted during the initial and future registration periods. This final rule also changed the process by which USCIS counts H–1B registrations (or petitions, for FY 2020
or any other year in which the registration requirement will be suspended), by first selecting registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. The USCIS will then select from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption. Changing the order in which USCIS counts these separate allocations will likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for further processing under the H–1B allocations. As observed by most immigration attorneys, those petitions filed on behalf of beneficiaries holding advanced U.S. degrees stood a significantly higher chance of getting picked in last year's H-1B lottery than those who only hold undergraduate degrees.

Under the FY 2021 H-1B Electronic Registration Process, the following procedures will be established: (1) The USCIS will announce on its website the start and end dates of the online registration period at least 30 days in advance; (2) the requested start date will be limited to the first calendar day of the new Fiscal Year (October 1); and (3) registered employers who were selected will be given 90 days from notification to submit and file the H-1B petition application with supporting documents. Despite the USCIS and DHS announcements and the present Federal Register, it remains unknown as to timing. It remains unknown as to when the lottery will actually take place, registered employers will be informed of the results, and whether employers will be permitted to apply for the ETA-9035 LCA in advance so as to prepare the submission and filing of the petition within the 90 day filing window.

Please note that the information provided on this website is for general information purposes only and is not to be construed nor relied upon as legal advice nor the formation of an attorney-client relationship. For a free consultation with Attorney Thomas M. Lee, please contact us.