Tag Archive for: H-1B registration

Cora-Ann Pestaina

H-1B Registration Update

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Since my last blog on  the upcoming H-1B registration, USCIS has hosted a few webinars where stakeholders – prospective H-1B petitioners and attorneys/representatives – were able to familiarize themselves with the new process. USCIS has since posted copies of the PowerPoint from these webinars in their Electronic Reading Room.

Prospective H-1B petitioners were, as of February 24, 2020, able to create H-1B “registrant” accounts through the MyUSCIS portal at https://my.uscis.gov/.  They need to select “I am an H-1B registrant” when creating the account. Attorneys/representatives are able to use the same type of representative account that was already available on the same site and may use an existing account. This account should have been created by selecting “I am a Legal Representative.”

USCIS will open an initial registration period from noon ET March 1, 2020, through noon ET March 20, 2020, for the FY 2021 H-1B numerical allocations. Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 1 at noon ET to enter beneficiary information, submit registrations, and pay the $10 non-refundable registration fee for each beneficiary. This fee will be collected via the Pay.gov portal and can be made from a bank checking or savings account or a credit or debit card. It will not be possible to pay the registration fee using money orders, certified checks or cash.

The registration form will only request basic information about the prospective H-1B petitioner and beneficiary. Based on the USCIS PowerPoint presentations during their recent webinars, it appears that no information regarding the offered position will be required for the registration process, not even the job title of the offered position. The prospective H-1B petitioner will only need to provide the following:

  • Company’s legal name
  • Company’s Doing Business As (dba) name(s) if applicable
  • Company’s employer identification number (EIN)
  • Company’s primary U.S. office address
  • The legal name, title, and contact information (daytime phone number and email address) of the company’s authorized signatory
  • Beneficiary’s legal name
  • Beneficiary’s gender
  • Beneficiary’s date of birth
  • Whether the prospective H-1B petitioner is requesting consideration under the Master’s cap because the beneficiary has already earned or will earn a Master’s degree from a U.S. institution of higher education prior to the filing of the H-1B petition
  • Beneficiary’s country of birth
  • Beneficiary’s country of citizenship
  • Beneficiary’s passport number

During the registration period, representatives and registrants will be able to review and edit the registrations of beneficiaries as many times as needed before the registration is submitted. Once the registration has been submitted, each beneficiary will be assigned a 19-digit confirmation number. If necessary, a registration containing an error may be deleted and resubmitted.

The authorized signatory of the prospective H-1B petitioner must be able to read and understand English. Before submitting the registration form, the company’s authorized signatory will be required to certify, under penalty of perjury, that they have reviewed the registration and that all of the information contained in the registration is complete, true and correct and that the company intends to file an H-1B on behalf of the beneficiary named in the registration (if the beneficiary is selected). This is an important attestation since DHS has indicated in the preamble to its January 31, 2010 regulation that it will investigate cases that demonstrate a pattern and practice of potential abuse of the registration system on a case by case basis, including any mitigating facts or circumstances. Registrants that have been found to engage in a pattern and practice of submitting registrations for which they do not file a petition following selection could be subject to monetary fines or criminal penalties pursuant to 18 U.S.C. 1001(a)(3) for making false statements and misrepresentations to the government.  The authorized signatory will also be required to provide their electronic signature confirming they have read and agree to the above statement by typing their full legal name into a box provided and they must also confirm that they can read and understand English and that they have read and understand every question and instruction on the registration.

Selections will take place after the initial registration period closes, so there is no requirement to register on March 1. If USCIS receives enough registrations by March 20, the agency will randomly select registrations and send selection notifications via users’ USCIS online accounts. USCIS said it intends to notify account holders by March 31, 2020. An H-1B cap-subject petition may only be filed by an H-1B petitioner whose registration for that beneficiary was selected in the H-1B registration process. The petitioner must include a copy of the selection notice with the H-1B filing. The filing period for submitting H-1B petitions begins on April 1, 2020, and will end no earlier than June 30, 2020. USCIS will not accept late filings.

As indicated in a previous blog on H-1B registration, this author believes that it makes the most sense to conduct a complete evaluation of the potential H-1B petition prior to submitting the registration. There are specific strategic decisions that may need to be made such as determining whether or not to file the Labor Condition Application (LCA) for the H-1B cap petition prior to receiving notification of selection from USCIS. Having a certified LCA would allow the H-1B petitioner to more quickly file the H-1B cap subject petition, a timeline that could be very important if the beneficiary is the holder of an F-1 visa with authorized Optional Practical Training (OPT) set to expire in early April 2020. H-1B cap-gap benefits only attach upon the timely filing of the H-1B cap petition and not upon the submission of the H-1B registration. It would make sense for a potential H-1B petitioner to have the LCA ready so as to be able to file the H-1B cap petition prior to the expiration of the beneficiary’s OPT which filing would extend the beneficiary’s duration of status and employment authorization until September 30, 2020 unless the H-1B petition is ultimately rejected, denied, revoked or withdrawn prior to this date.

During its webinars, USCIS had no prepared response regarding a plan of action for a possible system crash and would only indicate that they would inform stakeholders of what to do if there is a crash. Also of some concern is the fact that USCIS indicated it will not set up a separate phone line for the H-1B registration and that registrants and representatives experiencing technical issues should call the USCIS Contact Center at 1-800-375-5283 for assistance. Based only on experience calling this number for other filing issues, one can only wonder what type of assistance would actually be available through this channel. At this point, March 1, 2020 is just around the corner and all we can do now is wait and hope that the process, once underway, will work as intended.

 

 

 

 

Cora-Ann Pestaina

Filing under the FY 2021 H-1B Cap; How will H-1B Registration Work?

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It’s the year 2020! We celebrate the start of a new decade and are hopeful for good things to come. Will the upcoming H-1B cap season be one of those good things? All we know for sure is that it will be different. Preparing for the cap season can be stressful but we recognize the stressors and, through trial and error, we have developed various coping strategies and mechanisms. But this year, we are not sure what to expect.

As background, the H-1B program allows U.S. companies to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Congress has set a cap of 65,000 H-1B visas per fiscal year. An advanced degree exemption from the H-1B cap is available for 20,000 beneficiaries who have earned a U.S. master’s degree or higher from a U.S. institution of higher education. Each year, USCIS monitors the number of petitions received during the designated filing period and notifies the public when the H-1B numerical allocations have been met.

It was over a year ago, in December 2018, that USCIS first issued a Notice of Proposed Rulemaking announcing a rule that would revolutionize the H-1B cap process. The rule was made final on January 31, 2019 and amended the regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption and setting forth an H-1B registration process.  Ever since then, business immigration practitioners have been anticipating (or dreading?) the change. USCIS was unable to implement the registration process during the FY 2020 H-1B cap season but they previously announced that the process would definitely be implemented for the FY 2021 H-1B cap season and on January 9, 2020, USCIS published “Registration Requirement for Petitioners Seeking To File H–1B Petitions on Behalf of Cap-Subject Aliens” announcing that the agency had completed all requisite user testing and is implementing the registration process in advance of the H–1B cap season for FY 2021. Based all USCIS has released thus far, here is what we know about the registration process:

  • Employers seeking to file cap-subject H-1B petitions, or their authorized representatives, must complete a registration process that requires basic information about the H-1B employer and each requested H-1B worker. USCIS will open an initial registration period from March 1 through March 20, 2020.
  • There will be a non-refundable registration fee of $10 per for each H-1B registration submitted by petitioning employers.
  • If a specific employer submits more than one registration per beneficiary in the same fiscal year, all registrations filed by that employer relating to that beneficiary for that fiscal year will be considered invalid.
  • There is still no prohibition on a prospective H-1B beneficiary considering job opportunities with multiple employers which may seek to extend a job offer.
  • USCIS will provide step-by-step instructions on its website regarding how to register and employers and authorized representatives will be able to start setting up their registration accounts in advance of the registration period opening.
  • USCIS will post the date that employers and authorized representatives may start setting up accounts on its website.
  • Employers will be able to edit a registration up until the registration is submitted. An employer may delete a registration and resubmit it prior to the close of the registration period.
  • If a sufficient number of registrations are received, USCIS will use a computer-generated random registration selection process (lottery) to select enough registrations to meet the congressionally-mandated regular cap and the U.S. advanced degree exemption for fiscal year (FY) 2021.
  • The lottery will be conducted no later than March 31, 2020.
  • Employers with selected registrations will be eligible to file a cap-subject petition only for the beneficiary named in the registration. An employer may not substitute the beneficiary named in the original registration or transfer the registration to another employer.
  • USCIS will send notices electronically to all registrants with selected registrations. The notifications will be added to registration accounts. The account holder who submitted the selected registration will receive notification via email or text message stating that an action has been added to their account, and they will have to log in to see the full notice.
  • USCIS intends to notify registrants with selected registrations from the initial registration period no later than March 31, 2020.
  • After such selection, employers will be notified by USCIS of the exact amount of time allowed for filing the H-1B petition, which will in all cases be at least 90 days, but may be longer at the discretion of USCIS. Employers will have the ability to file their petitions as soon as eligible (i.e. by April 1) to allow the beneficiary to obtain cap-gap, if required.
  • USCIS may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.

According to the “H-1B Registration Workflow with Payment” that USCIS released in association with the proposed registration fee requirement, it appears that USCIS will require payment of the $10 registration fee through the Pay.gov portal. Employers may submit one combined registration fee payment for multiple prospective H-1B workers at the same time and the registration fee payment can be paid with either a debit or credit card, or with a withdrawal from a checking or savings account. It appears that USCIS will only require information such as employer and beneficiary names, addresses, employer identification number, and beneficiary date of birth and passport information.  USCIS has stated that they will not evaluate the “quality” of the registration other than to eliminate duplicate submissions. USCIS recognizes that some employers may be more willing to submit a registration than they are willing to submit a complete H-1B cap-petition with filing fees under the old process. However, USCIS will not have any means to determine whether a registration is meritorious until after it is selected and a petition resulting from such registration is properly filed. Because some registrations will not lead to approved H-1B cap-petitions, USCIS plans to hold unselected registrations in reserve and will conduct additional selections if necessary.

There are still many details yet to be divulged about the registration process but USCIS has promised to conduct outreach and training prior to the initial implementation of the registration system to allow the public the opportunity to familiarize themselves with the electronic registration process. In the meantime, this author believes that it makes the most sense to conduct a complete evaluation of any potential H-1B petition even prior to submitting the registration. For example, there ought to be preliminary discussions on education credentials, education evaluations, occupational classifications, wage levels, job descriptions, proving specialty occupation, etc. all before submitting a registration. It would be a terrible thing for an employer to be notified of a selection only to be later advised that their H-1B petition would likely be denied due to a degree or specialty occupation issue!

While one should anticipate that the new registration system will be up and running, there is still an outside chance that the system might not be ready, or may crash, and employers may at the last minute be asked to file full H-1B petitions in the first five business days of April 2020. Filers must be prepared for all eventualities, and this further underscores the need to ensure that the prospective employees for whom employers will file  H-1B petitions must be properly screened for H-1B eligibility and that all available information and documentation is available to file meritorious cases.