Executive Summary: A new federal rule has created a new electronic registration process for the annual H-1B lottery. The new electronic registration system will significantly change the sequence of the H-1B lottery. There will no longer be a rush to file full H-1B petitions the first week of April. Instead, prospective H-1B sponsors will now have to register candidates online, and will only file an H-1B petition for those registrations that are selected by USCIS in a lottery.
Background: The H-1B visa classification is designed for foreign workers who will fill professional occupations that require at least a bachelor's degree or equivalent. There is an annual limit of 65,000 H-1B visa numbers available each year, with an additional 20,000 reserved only for those holding U.S. master's degrees. We fully expect that USCIS will receive sufficient electronic registrations in March to fill all of the H-1B petitions for the year. Petitions that are accepted and approved will have a beginning validity date of October 1, 2020, or later.
Who Needs an H-1B Visa?
We urge employers to consider H-1B sponsorship for any current or future employees who are present in the U.S. under the following categories:
- F-1 student visas;
- J-1 exchange visitor visas;
- TN visas for Canadian and Mexicans professionals;
- L-1A/L-1B visas for managerial and specialized knowledge workers;
- E-3 visas for Australian professionals;
- L-2 or H-4 dependent visas; and
- E-1 or E-2 treaty visas.
Prospective professional employees who are residing overseas require visa sponsorship in order to work for a U.S. company. In many cases, the H-1B visa is the best vehicle to achieve this.
What to Expect for the 2020 (Fiscal Year 2021) H-1B Filing Season
This year, USCIS will open the initial online registration period from March 1 through March 20, 2020, for the FY 2021 H-1B numerical allocations.
- Employers and their representatives will be able to set up required registration accounts prior to March 1, 2020.
- Employers who wish to sponsor cap-subject H-1B petitions will need to register electronically with USCIS' new system and pay a $10 registration fee per petition.
- Duplicate registrations from the same employer for the same sponsored worker are prohibited. However, an employer can register an unlimited number of prospective H-1B workers, and a prospective H-1B worker may have more than one sponsoring employer submit a registration.
- Presuming that enough registrations are received, after March 20, 2020, USCIS will carry out a lottery to select enough registrations to reach the FY 2021 H-1B numerical allocations.
- USCIS will notify registrants with selected registrations no later than March 31, 2020.
- Only those prospective petitioners whose registrations are selected will be eligible to file a FY 2021 cap-subject petition, and the petition may only be filed for the foreign national named in the registration.
- USCIS will accept petitions associated with selected registrations for a filing period indicated on the eligibility notice, expected to be at least 90 days long (likely April 1, 2020 through June 30, 2020).
USCIS plans to engage in outreach activities to familiarize prospective petitioners with the new electronic registration process. It has announced that it will conduct webinars and publish videos for attorneys and general users to walk through the new system step-by-step.
What Information is Required for the Online Electronic Registration
It appears that for the electronic registration lottery in March, USCIS will only require basic information such as employer and beneficiary names, addresses, employer identification number, name/title/contact information for the authorized signatory, and beneficiary date of birth, beneficiary country of birth, beneficiary's gender, and passport information. Still, employers and their counsel should vet the viability of each case in advance of entering the lottery.
When Should I Start the H-1B Process?
Employers who would like to sponsor a worker for an H-1B petition should act quickly and begin working with an experienced business immigration attorney well in advance of March 1. For 2020, we anticipate robust demand for H-1B petitions, and expect electronic registrations to vastly outnumber the available petition numbers.
Employers' Bottom Line: USCIS has completely revamped the annual H-1B filing process and lottery sequence for 2020 with a new electronic registration requirement. H-1B sponsoring companies must register each prospective worker online during the period from March 1, 2020 to March 20, 2020. Given the high demand for H-1B visas, this will likely be the only opportunity of the year to register for an H-1B cap-subject petition. USCIS will then run the lottery and notify selected registrants by March 31, 2020. If selected, sponsoring companies will have at least a 90-day period to file H-1B petitions on behalf of the selected registrants. This new system effectively shifts the annual filing period from the mad dash during the first week of April to a 90-day filing period from April through June. Nonetheless, we recommend that companies start working with counsel right away to assess the eligibility of any anticipated cases. As USCIS solidifies the details of the electronic registration system and filing process, we will update this Alert.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.