Major Change To H-1B Cap Petitions – New Electronic Registration Process


by Diana Morales McFarland

dmoralesmcfarland@mcgrathnorth.com
(402) 341-3070

On January 9, 2020, the Department of Homeland Security (DHS) published a notice in the Federal Register to formally announce implementation of a new electronic registration for H-1B cap petitions. The implementation of the registration process now requires employers filing H-1B cap petitions for fiscal year (FY) 2021 to first electronically register and pay the associated $10.00 H-1B registration fee.

The electronic registration form will request basic information about the petitioning company or organization and employee. The following information will be requested from the petitioning company or organization:
1) Legal name of the company or organization
2) The Doing Business As (DBA) names of the company or organization, if applicable
3) Employer identification number (EIN) of the company or organization
4) Primary U.S. office address of the company or organization
5) Legal name, title, and contact information (daytime phone number and email address) of the authorized signatory

The following information will be requested from the employee:
1) Legal name
2) Gender
3) Whether the employee has a master’s or higher degree from a U.S. institution of higher education to determine eligibility for the advanced degree exemption
4) Date of birth
5) Country of birth and country of citizenship
6) Passport number

It is important to note that no information regarding the proffered position will be requested in the registration process. However, an evaluation of the minimum job requirements and the employee’s qualifications must be done prior to submitting an electronic registration to ensure that the employee qualifies for the proffered position. In addition, a Labor Condition Application (LCA) does not need to be completed prior to the electronic registration process.

The electronic registration will be available from March 1 – March 20, 2020. Please note the registration period will take place much earlier than the notable April 1 filing date. All registrations submitted during the registration period will be included in the H-1B lottery. U.S. Citizenship and Immigration Services (USCIS) will send notices electronically to all registrants that were selected in the H-1B lottery no later than March 31, 2020. Selected registrants will be able to file H-1B cap petitions beginning April 1, 2020 and will have at least 90 days from the date of the registration selection to file a complete H-1B cap petition to USCIS. USCIS will adjudicate the H-1B cap petitions in the order in which they are received. USCIS has not announced whether premium processing will be available for FY 2021 H-1B cap petitions. Upon approval of the H-1B cap petition, the H-1B visa will be available on October 1, 2020, the start of the government’s fiscal year.

H-1B visas allow highly skilled foreign workers to temporarily work in specialty occupations in the United States. The worker must have a bachelor’s degree or higher. Under the current H-1B system, 85,000 petitions may be granted – 65,000 “H-1B regular cap” visas (general category) and 20,000 “master’s exemption” visas (professionals who graduate with a master’s degree or higher from a U.S. institution of higher education). However, the number of petitions filed over the past ten years have vastly outnumbered the 85,000 cap. In the last government fiscal year, for example, 201,011 petitions were filed.

If the operation of your business requires that you consider seeking work authorization for employees with at least a bachelor’s degree or higher, or who otherwise are a skilled employee, as defined by the regulations, please contact Diana at 402-633-9563. Diana can assist you in navigating the new electronic registration process and preparing and filing H-1B petitions.

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