Thursday, January 23, 2020

H-1B CAP Registration Process - Questions and Answers

On November 8, 2019, the U.S. Department of Homeland Security published a final rule establishing an electronic registration program for H-1B CAP petitions for FY 2020.

Just four days before its implementation, the Director of USCIS, Ken Cuccinelli, stated that he has a “fairly high degree of certainty” that USCIS will be ready to implement the digital tool for the upcoming H-1B 2020 cap season.  He also said he expects that the USCIS will make a formal announcement by the end of the fiscal year.

The initial registration period will start March 1, 2020, will close (“tentatively”) on March 20, 2020, and will require a fee of $10.00.

To date we await a formal announcement from the USCIS about the implementation of the new H-1B CPA electronic registration process.  Stakeholders have been told that “the H-1B electronic registration process is still undergoing beta testing and is not yet active.”

Because USCIS may newly suspend implementation of the H-1B registration program for the upcoming 2020 cap season, we advise employers to proceed under the assumption that the new H-1B registration program will be fully functional and implemented for the upcoming CAP season.

 

H-1B CAP Registration -- FAQs

These FAQs are based on information available at this time and will be modified as information becomes available. 

Question: What is H-1B CAP registration?

Answer: It is a USCIS system to monitor the number of H-1B cap petitions submitted and to conduct the H-1B lottery before the petition is submitted.

 

Question: Who must register?

Answer: Prospective employers that are not cap-exempt (i.e. universities or qualified research institutions, non-profit institutions affiliated with an institution of higher education, employees already counted against the cap, and physicians that have obtained a State 30 J-1 Waiver).

 

Question: When does the registration period begin?

Answer: Registration begins on March 1, 2020 and ends on March 20, 2020

 

Question: Is there a registration fee?

Answer: Yes. There will be a $10.00 non-refundable government filing fee.

 

Question: What information will be required for H-1B employers and prospective H-1B employees to register?

Answer: according to the information available, employers and employees may be required to register the following:

  1. Company’s legal name
  2. FEIN
  3. Prospective H-1B employee’s full name
  4. Date of birth
  5. Country of birth
  6. Citizenship
  7. Passport number
  8. Gender
  9. An employer attestation that there is a bona fide temporary job offer for which the prospective H-1B employer intends to file an H-1B petition

 

Question: How many registrations can be submitted by a prospective H-1B employer for a prospective H-1B employee?

Answer: An employer can submit one electronic registration for each prospective H-1B employee. Any prospective H-1B employer must submit a separate registration for each prospective H-1B employee it seeks to register. No duplicates will be permitted. However, multiple employers can submit one H-1B electronic registration on behalf of the same prospective H-1B employee.

 

Question: What happens if a duplicate electronic registration is submitted for a prospective H-1B employee?

Answer: based on current practice, we anticipate that if an H-1B employer submits a duplicate or multiple H-1B electronic registration for the same prospective H-1B employee, all registrations for the prospective H-1B employee will be rejected.

 

Question: Will a prospective H-1B employer be required to provide information about the offered position in the new initial H-1B electronic filing?

Answer: Information about the position to be offered to the prospective H-1B non-immigrant does not seem to be required to register. However, it is important to assess the requirements for the position and the qualifications of the employee to ensure that a prospective non-frivolous H-1B petition will be filed.

 

Question: Is the employer required to establish eligibility for H-1B status when submitting the registration?

Answer: No, if the petition is selected in the H-1B visa lottery then the prospective H-1B employer will be required to provide information about the employing organization and the specialty occupation position being offered to the prospective H-1B nonimmigrant employee.

 

Question: Is a Labor Condition Application (LCA) required to be filed with the Department of Labor before the new H-1B electronic registration can be filed?

Answer: No, but the Labor Condition Application (LCA) preparation ahead of time is certainly advisable. This should include determining the prevailing wage, posting, and filing with the DOL before the electronic H-1B registration occurs to ensure the prospective H-1B employer organization has a certified LCA if selected. The submission of the application can occur within a short time of the resulting H-1B electronic lottery results notification.

 

Question: Will the USCIS issue a receipt upon completion of the electronic registration process?

Answer: according to the information provided, the USCIS will issue a registration confirmation number, which will be different from the ISCIS number assigned to the H-1B CAP petition, if filed.

 

Question: How will the new electronic H-1B lottery be conducted?

Answer: USCIS will first conduct the lottery for the 65,000 numbers and include all registrations. USCIS will then conduct a second lottery for the 20,000 numbers reserved for U.S. advanced degree holder registrations. This process change was implemented in 2019 and it is designed to increase the chances of prospective H-1B employees with a master’s or higher degree from a U.S. institution of higher education to an estimated 16% (or 5,340 workers).

 

Question: What a prospective H-1B employer must do if chosen in the lottery and is allotted an H-1B visa number?

Answer: The prospective H-1B employer has 90 days to file the H-1B petition with the USCIS.

 

Question: What measures is USCIS taking to prevent the filing of frivolous H-1B applications? 

Answer: USCIS has confirmed that it intends to monitor the electronic registration system for prospective H-1B employers who may submit large numbers of H-1B registrations and then later file only a few selected petitions at a significantly lower rate.

 

Question: May an immigration lawyer or attorney submit an electronic H-1B registration for a prospective H-1B employer and prospective H-1B employee?

Answer: Yes. Immigration Attorneys will be able to file electronic H-1B registrations for their clients using the Form G-28, Notice of Entry of Appearance as Attorney.

 

Question: How are the electronic registration fees supposed to be paid?

Answer: Payment for electronic H-1B registrations must be made at www.pay.gov via ACH or credit card.

 

Question: Will the government accept cashier’s check or money order for the electronic H-1B registration fee?

Answer: No. Cash, certified (bank) checks, and/or money orders will be prohibited.

 

Question: Will the new H-1B electronic registration process be implemented this upcoming cap season?

Answer: On November 4th, 2019, the Director of USCIS, Ken Cuccinelli, stated that he has a “fairly high degree of certainty” that USCIS will be ready to implement the registration program for the upcoming H-1B 2020 cap season. However, at this time, we do not know if it will be implemented. We have been informed that the USCIS is currently testing the systems. We are waiting for the USCIS to formally announce their decision for FY 2020 applications.

 

Question: If confirmed, can it later be suspended?

Answer: Yes.

 

Question: What can H-1B employers and prospective employees do while we await guidance from the USCIS?

Answer: Prospective H-1B employers should be working with their attorneys to identify prospective H-1B employees they want to sponsor in order to be ready to register as soon as the USCIS announcement comes out, which we expect to be any day now.

 

Question: What is the benefit of working with prospective H-1B nonimmigrants to prepare the documents and LCA before a potential notification that a prospective H-1B employee was selected in the new electronic registration lottery system?

Answer: According to information provided, selected H-1B employers will have 90 days to submit the H-1B application. We recommend employers file H-1B applications as soon as possible because they are adjudicated on a first come first serve basis.  Especially for F-1/OPT employees who benefit from the OPT cap-gap program to minimize interruptions in work authorization before October 1st.  Prospective H-1B employers must carefully review all cases thoroughly to ensure that cap-gap cases are timely filed if chosen in the electronic registration process - strategic planning for cap-gap cases is critical. 

 

Question: are there any other strategic considerations that prospective H-1B employers need to have in mind for the upcoming H-1B cap season?

Answer: If an H-1B cap employer has not yet identified H-1B prospective employees, they should streamline their recruitment process to identify prospective H-1B cap employees before the end of January and gather the pertinent registration information as fast as possible so the registration can be completed in a timely fashion between March 1st and March 20, 2020. 

 

For more information about the H-1B professional and specialty occupation work visas, please contact our Immigration Practice at (214) 672 2162.  Their blog is available at myimmigrationvisa.us

Return to list.