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Big Changes are Coming To CAP-Subject H-1B Petitions

May 28, 2019

Next year, USCIS likely will introduce H-1B cap registration and the H-1B cap season, as we know it, will cease.

Employers and attorneys will no longer be required to prepare entire petitions for cases that may not actually be selected and adjudicated. Instead, employers may enter the H-1B lottery by providing a small amount of information up front with their registration. If their registration is randomly selected, employers would then file the full H-1B petition.

The contents of the registration to participate in the random selection process will include just a few employer and job-related data-points. Specifically, the below information will be required:

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

USCIS will use this information solely to select the H-1B petitions to adjudicate, not the actual adjudication. Employers can only register once — everyone has the same chance.

Employers must attest that they intend to employ the beneficiary. The Department of Homeland Security (DHS) plans to use enforcement action if it finds a pattern and practice of employers who make an attestation but do not file petitions.

The new program should make it more cost-effective for employers to pursue H-1B employees because it will reduce the amount of work on the front-end.

But how do we begin to prepare for H-1B FY2021 filing season? First, USCIS will provide notice when the registration will be ready and plans to conduct public outreach on the use of the Registration Tool. USCIS will test the system to ensure processing of registrations is fully functional. Then USCIS will announce the start date for the registration period 30 days prior to opening registration. Registration will begin at least 14 days before the first petition filing opportunity, and will last at least 14 days. If USCIS needs to extend registration to receive additional petitions, it will make an announcement. Employers will have 90 days to file petitions after notification of selection.

During the public comment period, Immigration attorneys requested that the registration period be in January or February to allow for USCIS to adjudicate petition by October 1st; however, USCIS declined. Therefore, timing still seems to be the biggest concern. There is some uncertainty around whether cases will be able to be processed by October 1st if registration opens in March and selected cases then need to be prepared and filed within 90 days.

  • Will employers still pre-prepare cases to file as soon as selection is completed?
  • Or, will they wait until selection and then prepare cases, filing them within 90 days?

Waiting until selection could take case submission into June or possibly July, two to three months later than previous seasons. This concern is further exacerbated by extensive backlogs in USCIS adjudications. Still, the pressure appears to be off, somewhat, to have complete filings ready by March 31. Additionally, it is likely that the total number of complete filings that will need to be prepared will be fewer overall.

Even so, we cannot know exactly how the new H-1B registration process will impact the practice. Whatever the case, employers and attorneys are expected to have less documentation to prepare overall to participate in the H-1B cap moving forward, which is a positive step in the right direction.