Corporate Immigration Law News

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Further to our recent Client Alert, U.S. Citizenship and Immigration Services confirmed through its announcement on December 6th, that employers seeking to file H-1B cap subject petitions must first electronically register the company and pay the associated $10 H-1B registration fee per H-1B candidate before filing a petition for the fiscal year 2021 H-1B cap.

According to the announcement, USCIS will open an initial registration period from March 1 through March 20, 2020.

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

* USCIS will then randomly select the number of registrations needed to reach the H-1B numerical allocations after the initial registration period closes, but no later than March 31, 2020.

* Prospective petitioners with lottery-selected registrations will be eligible to file a cap-subject petition only for the employee named in the selected 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 employees during a single online submission, duplicate registrations  by an employer for the same beneficiary in the same fiscal year will be discarded. USCIS claims it will 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. USCIS will also 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.

For more information on the H-1B registration system, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

DHS recently published a final rule to establish an electronic registration program for H-1B petitions that requires a $10 registration fee per H-1B candidate for the April 2020 cap season (FY 2021). The primary purpose of the regulation is to conduct the lottery in such a matter so that employers will know in advance of filing a full H-1B petition whether the candidate has been selected in the lottery, which will then necessitate submitting a complete H-1B filing for each selected candidate with USCIS within 90 days of receiving such notice.

It is important to note that, consistent with prior rules,  multiple employers (e.g. affiliate companies) will be eligible to submit a candidate registration on behalf of the same employee, so there is a new level of strategy that can be considered for certain “must have” employees who may be facing difficult situations, including those having to leave the United States due to impending post-completion OPT expirations and/or those engaging in risky full-time CPT to “buy time” for a possible H-1B cap selection.

While we await confirmation whether or not the H-1B registration program will be active for the upcoming cap season, we are advising clients to anticipate as if the new program will be implemented. Read additional details here.

If you have any questions , please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.