The U.S. Citizenship and Immigration Services has a new electronic registration process for the fiscal 2021 H-1B Cap Season that will save employers significant time and expense—employers seeking H-1B workers subject to the annual numerical cap, or their authorized representatives, will be required to complete a registration process that requires only basic information about their company and each requested worker.
Employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exception (“Master’s Cap”), must first electronically register and pay the $10 H-1B registration fee.
This registration system will not increase the number of H-1Bs or improve the odds of obtaining one, but it will save employers time and money. For a $10 filing fee, they will find out whether their applications will be accepted and processed before having to incur the cost of an entire H-1B application.
The USCIS first proposed this process in January 2019. Shortly afterward, several lawsuits challenged the rule based on concerns over the efficacy of the software that it would use to make the random selections. In response, the USCIS postponed implementation of this system from 2019 (for FY 2020 filings) to 2020 (for FY 2021 filings).
Many employers continue to be concerned the system will not work effectively and they will be required to submit complete H-1B applications during the first week of April 2020, that will then be placed in another lottery.
Leaving aside concerns over the USCIS’ software program and how it will implement this selection process, most employers I’ve spoken with seem to like the idea of being able to submit a low-cost registration request to provide them certainty the complete H-1B applications they submit will be processed, as opposed to being required to go to the expense of submitting numerous petitions that might not ever be selected in the lottery.
Background Criteria
The H-1B visa is intended to employ foreign nationals in “specialty occupations.” These jobs must meet one of the following criteria to qualify as a specialty occupation:
- A Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position; or
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree; or
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
To qualify to accept a job offer in a specialty occupation the foreign national must:
- Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university; or
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation; or
- Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
Federal law imposes an annual limit of new H-1B “slots” of 85,000 per fiscal year with 65,000 allocated to the “Bachelor Cap” (for beneficiaries holding either Bachelor’s Degrees from U.S. universities or Bachelor’s or higher degrees from foreign schools) and an additional 20,000 for the “Master’s Cap” (for those holding advanced degrees from US schools).
These applications, requesting Oct. 1 start dates (the first day of the new fiscal year) are submitted in the first week of April each year. In recent years, the USCIS has consistently received well over 200,000 H-1B applications for these “slots” and has held a blind-draw lottery for those received in the first five business days of April.
Being selected does not guarantee an approval; those applications selected are processed and can still be denied if they do not satisfy legal requirements.
This numerical cap and the very large demand for H-1Bs consistently results in over 115,000 of these petitions being returned to employers every year with a notice indicating they were not selected in the lottery. This has resulted in many employers spending legal fees with no result (the filing fee checks for these are also returned and not cashed by the USCIS).
While not motivated out of concern for business owners, the USCIS has announced a new method for selecting applications for these slots.
New Initial Registration Period
The USCIS has announced it will open an initial registration period from March 1 through March 20 for those seeking H-1Bs. During this time, employers or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition.
Although employers can register multiple aliens during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be discarded.
As of this writing, the USCIS has not announced how these registration requests are to be submitted. It has stated it will provide guidance on how to use the system and prepare these before opening the initial registration period.
If the number of registrations hit or exceed the numerical cap, the USCIS will randomly select the number of registrations projected as needed to reach the H-1B cap after the initial registration period closes and no later than March 31. Employers with selected registrations will then be eligible to file a cap-subject petition only for the alien named in the registration selected by USCIS.
In prior announcements, USCIS has indicated those selected would then be issued a “license” (our word, not theirs) that would allow the employer to submit an H-1B application within a specified period. If this remains part of the new protocol, the annual rush to file petitions in the first five business days of April could be a thing of the past.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Author Information
James G. Aldrich leads the Immigration Team in the Labor and Employment Department at Dykema. He has significant international business and immigration experience, including advising on the immigration aspects of investment opportunities in the United States, corporate formation, and the employment of foreign nationals in the U.S.
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