This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.
On January 9, 2020, U.S. Citizenship and Immigration Services (USCIS) published a Federal Register notice formally announcing implementation of the H-1B registration process for fiscal year 2021 H-1B cap-subject petitions.
USCIS will open an initial registration period from March 1, 2020, through March 20, 2020, for the fiscal year 2021 H-1B numerical allocations. The agency released the following details:
- During this time, H-1B cap-subject petitioners, including those eligible for the advanced degree exemption, seeking to file a fiscal year 2021 H-1B cap petition must first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission.
- Prospective petitioners or their authorized representatives must electronically submit a separate registration naming each person for whom they seek to file an H-1B cap-subject petition. Duplicate registrations are prohibited.
- As described in the H-1B registration final rule, if sufficient registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the fiscal year 2021 H-1B numerical allocations after the initial registration period closes and notify registrants with selected registrations no later than March 31, 2020.
- Prospective petitioners with selected registrations will be eligible to file a fiscal year 2021 cap-subject petition only for the person named in the registration and within the filing period indicated on the eligibility notice.
- 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.
The Alliance of Business Immigration Lawyers recommends a thorough evaluation of any potential H-1B petition even before submitting the registration. For example, there ought to be preliminary discussions on education credentials, occupational classifications, wage levels, job descriptions, proving the specialty occupation and establishing the nexus between the petitioner and third-party sites all before submitting a registration. It would be most unfortunate 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.