Majors Law Firm P.C.

USA Immigration Explained

Print This Page

H-1B Electronic Regstration

H-1B visa cap & electronic registration process

The H-1B cap is an annual limitation on the number of individuals who may be granted H-1B status, not including those who are exempt from the cap (which includes those who previously have been counted against the H-1B cap, or if the sponsoring organization is an institution of higher education or non-profit research or governmental organization). The cap is set by Congress and currently is at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for nationals of Chile and Singapore. There is an additional 20,000 H-1B slots available to persons who have earned master’s degrees or higher from certain U.S. institutions of higher education (“master’s cap”).

The U.S. Citizenship and Immigration Services (USCIS) has confirmed that it will implement the new electronic H-1B registration system for the upcoming cap season. Employers seeking to file cap-subject H-1B petitions will be required to electronically register each candidate for selection in the fiscal year 2021 (FY2021) lottery. The initial electronic registration period will run from noon March 1 through noon March 20, 2020. Assuming the number of registrations exceed the quota, USCIS will then run a lottery on the electronic submissions no later than March 31. Only those candidates chosen in the lottery will be authorized to have employers submit a full H-1B petition on their behalf to USCIS for adjudication.

Comparison with previous process

The initial registration requires basic information about the employer, the candidate, and the potential position.

This new process changes the timing of the H-1B cap-subject petition process. In prior years, all fully prepared H-1B cap-subject petitions were filed during the first five business days of April and the USCIS then ran a lottery based on the petitions received during that time period, but employers would not know if their petition was selected until weeks or months later.

In summary, under the new system, the timing for filing an H-1B petition now starts earlier. First, an electronic registration with basic information about the employer and beneficiary must be submitted between March 1 – March 20, 2020. Then, if needed, the USCIS will run a lottery from the registrations it received during that period and will electronically notify the petitioning employer or attorney-on-record if a registration has been selected no later than March 31, 2020. If selected, there will be 90 days to file the corresponding fully prepared H-1B cap-subject petition beginning on April 1. If the registration is not selected, it will be placed on a wait list in case more petitions can be filed later.

Information required for the electronic registration process

REGISTRANT INFORMATION:

• Legal name of the prospective petitioning company or organization

• The Doing Business As names of the prospective petitioning company or organization, if applicable

• Employer identification number (EIN) of the prospective petitioning company or organization

• Primary U.S. office address of the prospective petitioning company or organization

• Legal name, title, and contact information (daytime phone number and email address) of the authorized signatory

BENEFICIARY INFORMATION:

• Beneficiary’s legal name

• Beneficiary’s gender

• Beneficiary’s date of birth

• Is consideration under the INA 214(g)(5)(C) advanced degree exemption requested because the beneficiary has earned, or will earn prior to the filing of the H-1B petition, a master’s or higher degree from a U.S. institution of higher education? [Note: To qualify, one must have completed a master’s degree (or higher) from a qualifying U.S. school. The school must be properly accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. Furthermore, the school must be a public or other nonprofit institution.]

• Beneficiary’s country of birth

• Beneficiary’s country of citizenship

• Beneficiary’s passport number

No information regarding the offered position will be required to be provided to USCIS as part of the electronic registration process, such as the job title or the minimum job requirements. However, the employer is also required to attest that each registration is connected to a bona fide job offer and that, if the registration is selected, the employer intends to file an H-1B petition for the individual.

Registration requires completion of a master’s degree to qualify for the master's cap exemption? What about a bachelor's degree?

No, the master's degree does not need to be awarded to file the Registration under the master's cap. The USCIS states multiple times in the preamble to the H-1B registration final rule that establishing eligibility is not a requirement for registration and that it is simply an “antecedent procedural requirement to properly file the petition.” Regarding completion of a bachelor’s degree, the same principle is applicable: it is permissible if the candidate has completed all of the degree requirements before the petition is filed. [Reminder: The H-1B petition is filed within the 90 day period after selection of the electronic registration announced by the USCIS at the end of March]. Since the 90-day filing window for almost all registrations selected will probably start on April 1, 2020, H-1B candidates graduating during this period meet the degree requirements.

Will a Labor Condition Application (LCA) be required as part of the electronic registration process?

No., the electronic registration process does not allow for or accept a certified LCA.

Can I self-petition?

No. Only a U.S. employer or an attorney who has obtained the consent of the employer can file.

Can two petitioners each submit a Registration for the same beneficiary?

A single employer can file only one H-1B registration per employee. However, it is possible for an individual to be registered for the lottery by more than one U.S. company if unrelated or unaffiliated to each other. There must be two separate job opportunities that can be clearly documented when the H-1B petition is filed. The companies must not act in concert to promote a specific candidate.

Is there a limit on the total number of beneficiaries that a prospective petitioner (employer) may register?

No. There is no limit on the total number of beneficiaries that a prospective petitioner may register for the H-1B visa lottery.

If an H-1B Registration is selected for Co. X, can it be used to file an H-1B petition from Co. Y?

No, this is not an option. Only the H-1B registrant employer can submit an H-1B petition for the specified candidate with the USCIS if the registration is selected in the anticipated lottery.

Will a Registration received on March 20 be given equal consideration for selection in the lottery as a Registration received on March 01?

Yes. the USCIS will pool all registrations from March 1 through March 20 irrespective of the number of registrations received during this period. The USCIS will conduct the lottery sometime between noon March 20 and March 31.

Is there a login for a beneficiary of an H-1B Registration to check results directly with the USCIS?

No. The attorney-on-record or the employer will need to communicate the H-1B registration and lottery results. The USCIS will not directly correspond with the beneficiary or allow the beneficiary access to the system.

What effect will the H-1B cap registration process have on H-1B petitions for beneficiaries who are seeking cap-gap protection?

H-1B petitions that are timely filed for an eligible F-1 student that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

Under the cap-gap provisions, if an employer timely files a cap-subject H-1B petition (i.e., not merely a registration) for a change of status for an October 1st start date before the OPT period ends, the student in F-1 status may continue working between the expiration of the employment authorization as indicated on the employment authorization document (also known as Optional Practical Training) and October 1st. If the H-1B petition with change of status is approved by October 1st, the beneficiary will automatically be in H-1B status on October 1st.

If the petition is still pending as of October 1st, if the OPT period has expired the candidate should stop working until the H-1B petition is approved with change to H-1B status, at which point employment with the sponsoring employer can resume.

Again, the new electronic registration program that the USCIS is operating does not provide any cap-gap benefits. Only if the registration is selected in the lottery, and the cap-subject H-1B petition is filed per USCIS regulations, is the candidate able to benefit from cap gap.

The extension of status will automatically terminate if the student’s H-1B petition is denied, withdrawn, revoked, rejected, or is not selected, or if the change of status request is denied or withdrawn even if the H-1B petition is approved for consular processing. The student will have the standard 60-day grace period from the date the extension of status terminated or their program end date, whichever is later, to depart the United States.

Is presence in the U.S. required for the H-1B petitioner (the sponsoring company) to submit a registration or if the registration is selected, is presence in the U.S. required for an H-1B petition to be filed?

No, there is no physical presence requirement. The H-1B petition would be adjudicated with consular processing instead of “change of status” by the USCIS, necessitating that the candidate apply for an H-1B visa at a U.S. consulate abroad before requesting admission in H-1B status.

Can Attorney B file an H-1B petition although Attorney A filed the H-1B registration that was selected in the lottery?

Yes, Attorney B's Form G-28 (Notice of Appearance as Attorney) will accompany the H-1B petition filed with the USCIS. The previous attorney's consent is not required to change the attorney-on-record, and all future correspondence from the USCIS will be sent to the new attorney.

Will premium processing be available?

Not sure at this time. In previous years the USCIS has delayed the availability of premium processing for cap-subject H-1B petitions.

This article makes for fascinating reading. Where can I obtain additional information?

Here.

This article provides only general information, and your own case may require specialized guidance. Please contact our law firm to discuss.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]

 


Go Top