What does electronic registration mean for H-1B Cap Subject Petitions to be filed in April 2020 for FY 2021?

On January 31, 2019, the Department of Homeland Security published the final rule: Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens.[1]  This rule changed the submission and selection of Cap-Subject H-1B Petitions. The rule requires that employers register to file H-1B petitions in an effort to streamline the processing of cap-subject petitions that historically are filed at three times the annual amount available. The Department says that the new rule provides user cost reduction and government benefits. The main government benefits include: no longer having to receive, handle, and return large numbers of petitions that are currently rejected because of excess demand (unselected petitions). For the first year (FY 2020) that the final rule was in effect, U.S. Citizenship and Immigration Services (USCIS) suspended the electronic registration requirement.  For cap season this year FY 2021, there has not yet been any confirmation as to if it will be suspended again or not.

If the registration requirement is in effect for cap-subject petitions, employers and beneficiaries nationwide are anxious to find out how it will affect the season.  The registration process will require the company to provide the following information: (a) the employer’s name, FEIN and mailing address; (b) the employer’s authorized representative’s name, job title and contact information; (c) the beneficiary’s full name, date of birth, country of citizenship, gender and passport number; (d) if the beneficiary has obtained a master’s or higher degree from a U.S. institution; and (e) information regarding the employer’s attorney.  Additionally, on September 3, 2019, USCIS announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS.

According to the Federal Register, here’s what we do know in relation to timing: USCIS will announce the start date of the initial registration period on the USCIS website for each fiscal year at least 30 days in advance of the opening of the registration period. In each fiscal year, the registration period will begin at least 14 calendar days before the first day of petition filing and will last at least 14 calendar days. USCIS will also separately announce the final registration date in any fiscal year on the USCIS website [Emphasis added.][2] Once USCIS determines that the online registration tool is available, it will make the announcement and employers who will file petitions will need to register their company and the petition for their specific employees.

After completing a registration, petitioners and their representatives will be able to login and see registrations and/or selection notices and print a copy of these selection notices if needed. USCIS will not be separately notifying the beneficiary because the petitioner is the affected party in the administrative proceeding.  After selection, petitioners will be notified by USCIS 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. The rule states that petitioners will submit a copy of the registration with the associated petition to ensure efficient and timely processing and adjudication of the petition. Otherwise, there may be substantial delay in verifying and matching a filed petition with a specific registration.[3]

If you are an employer or potential beneficiary for FY 2021 and plan to file an H-1B cap-subject petition, you should keep in mind the following:  USCIS will announce the use (or not) of the online registration tool which may cost $10 per employee to register.  Because the first filing date is April 1, 2020 for the upcoming fiscal year, the registration period will open no later than March 18, 2020, with the Registration period being announced to the public at least 30 days before it opens, or by February 17, 2020. The company will have to have and furnish the information discussed above to register for filing H-1B petitions. USCIS will then conduct a random selection of all of the registrations received during the initial registration period.  After selection, the employer will have the government allotted time to file their petition or lose their place.

At this point it is still too early to determine if the online tool development and testing will be completed in time for use this year.  Interested parties will just have to wait and see how the cap season will go!

[1] https://www.federalregister.gov/documents/2019/01/31/2019-00302/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject

[2] https://www.federalregister.gov/d/2019-00302/p-134

[3] https://www.federalregister.gov/d/2019-00302/p-237