By: Attorney Brittany Milliasseau
In January of last year, the Department of Homeland Security (DHS) issued a new rule that made major changes to the H-1B visa program and the filing of H-1B Cap-subject petitions. The new regulation included two very important changes to the H-1B visa selection process, including an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions and a reversal of the order by which H-1B petitions are selected.
The rule became effective in April 2019, however DHS suspended the electronic registration process. Subsequently, U.S. Citizenship and Immigration Services (USCIS) confirmed its plan to implement the electronic registration for process for the Fiscal Year 2021 cap season beginning in 2020. As H-1B cap season quickly approaches, foreign nationals and sponsoring employers interested in pursuing H-1B petitions should become familiar with the new process and take steps to prepare for the upcoming H-1B season.
The H-1B visa program allows companies in the United States to temporarily employ foreign nationals in a “specialty occupation.” A “specialty occupation” is an occupation that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s degree. Certain positions that may qualify as specialty occupations include engineers, teachers, physicians, lawyers, and architects. Even if a foreign national has a prospective employer willing to employ him or her in a specialty occupation, it is not a guarantee that the applicant will be able to secure an H-1B visa.
The yearly number of H-1B visas allocated by Congress is 65,000, with an additional 20,000 allocated for individuals who have earned a Master’s degree or higher from a U.S. university. Typically, there are far many more H-1B petitions submitted to USCIS, which has created the need for a computer-generated random selection process, or “H-1B lottery” system. In previous years, H-1B employers were required to submit complete H-1B petitions to USCIS during the first week of April. This resulted in USCIS receiving thousands of H-1B petitions. Once the cap was reached, USCIS conducted a lottery, and only those petitions selected in the H-1B lottery were reviewed and adjudicated. Unselected petitions were returned.
Under the new process, employers wishing to file H-1B cap petitions will first need to electronically register and pay a $10 fee for each electronic registration to USCIS. The electronic registration form will require petitioning organizations to provide basic information such as company name, address, employer identification number, and contact information of the authorized signatory. In addition, the electronic registration form will require information about the beneficiary such as name, gender, date of birth, country of birth, country of citizenship, passport number, as well as whether the beneficiary has a U.S. master’s degree for consideration under the advanced degree exemption (“U.S. Master’s Cap”). Information regarding the offered position such as job title and requirements are not expected to be required for electronic registration.
USCIS has confirmed that they will open an initial registration period from March 1 through March 20, 2020. If needed, USCIS will run a random selection process, or “lottery” on the electronic registrations. While the precise method of notification is unknown at this time, USCIS will notify petitioners of the exact amount of time allowed for filing the petition, which will in all cases be at least 90 days, but may be longer at the discretion of USCIS. All registrations that were not selected in the lottery will remain on reserve and USCIS will conduct additional selections if necessary. More information regarding the new electronic H-1B registration process is expected and USCIS has stated that it will provide further instructions and detail regarding the process.
It is now more important than ever to ensure that you are represented by knowledgeable and highly competent immigration counsel who can keep you aware of the various changes and adapt as necessary throughout the entire H-1B application process. If you are interested in filing an H-1B cap petition for the upcoming year, it is essential to meet with an experienced immigration attorney as soon as possible to discuss the new process and H-1B eligibility. As mentioned, USCIS will open the initial registration period on March 1. Speak with an experienced immigration attorney today so you can be ready for H-1B cap season well in advance of March 1!
