H1B – CSS IMMIGRATION FORUM

H-1B FY 2021 Electronic Registration Background

The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations requiring a bachelors or higher degree, or its equivalent. Annually, USCIS selects at least 65,000 H-1B visas under the H-1B regular cap and reserves another 20,000 visas for those holding advanced degrees from U.S. higher education institutions. When USCIS determines that it has received a sufficient number of H-1B petitions to reach the congressionally-mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted towards the H-1B cap.

USCIS had postponed the electronic registration requirement for the FY 2020 cap season to complete user testing and ensure the system was fully functional.3 After a successful pilot testing phase, the USCIS is now prepared to implement the electronic registration system in the next H-1B lottery.

H-1B FY 2021 Electronic Registration Window to Open March 1 through March 20, 2020

From the Public Engagement Division of USCIS: U.S. Citizenship and Immigration Services announced on 12/6/19 the requirement for employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register and pay the associated $10 H-1B registration fee before filing a petition for the fiscal year 2021 H-1B cap.

USCIS will open an initial registration period from March 1 through March 20, 2020.

· During this initial registration period, prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition.

· If a sufficient number of registrations are received, we will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2020.

· Prospective petitioners with selected registrations will be eligible to file a cap-subject petition only for the alien named in the registration.

Once the H-1B registration system has been implemented, and when registration is required, the agency will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary, and the appropriate fiscal year. Additionally, although petitioners can register multiple aliens during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be discarded.

During the past few months, USCIS conducted usability testing for the H-1B registration system. We incorporated feedback from those sessions into redesigns of the system. After completing the current development phase, USCIS will conduct further 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. USCIS will provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period.

DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration process.

Premium Processing Available Monday, June 10th, for Consular Processed H-1B Cap Petitions

On June 10, USCIS will begin premium processing for all remaining FY 2020 H-1B cap-subject petitions. Starting on that date, the sponsoring employer may file Form I-907 with the USCIS service center that is processing the petition in order to upgrade.

On March 19, USCIS had previously announced that it would offer premium processing in a two-phased approach during the FY 2020 cap season to best manage premium processing requests without fully suspending it. In the past few years, USCIS had suspended all premium processing for H-1B petitions due to high demand. Based on feedback from the public, USCIS allowed this phased approach to benefit petitioners and ensure efficient premium processing. The first phase, which started on May 20, included FY 2020 cap-subject H-1B petitions requesting a change of status, and the second phase beginning on June 10th includes all other FY 2020 cap-subject petitions.

Once the I-907 is received by USCIS, the 15-day clock begins. USCIS should either approve the petition or issue a Request for Evidence within 15 days (RFE). If an RFE is issued, the 15-day clock begins again once USCIS receives the response to the RFE. When upgrading, the receipt number remains the same. The employer or attorney should receive an email notification within a few days of USCIS receiving the upgrade. A paper receipt follows in the mail about a week later. Keep in mind that receiving an early approval does not mean that the H-1B will have an earlier start date. The approved petition will still not become valid until October 1, 2019. The benefit of premium processing is that the H-1B beneficiary can schedule the visa interview at the U.S. consulate and allow sufficient time to receive the visa stamp in the passport in order to enter the U.S. on October 1st to begin employment in H-1B status.

There is a common misconception that premium processing causes RFEs and denials. I have not found this to be the case and recommend my clients to file in premium processing whenever possible.

This is welcome news for businesses and high-skilled workers who would otherwise expect delays in being able to begin H-1B employment on October 1, 2019.