New H-1B Procedures Take Effect In 2020

In 2019, U.S. Citizenship and Immigration Services (USCIS) issued final rules making a number of changes to the H-1B visa lottery process. This Holland & Knight alert highlights key differences in the 2020 process and answers other important questions for employers.

What Is Changing?

• Petitioners are now required to electronically register each H-1B visa petition they want to submit.

USCIS is implementing a new online lottery registration requirement for the Fiscal Year (FY) 2021 H-1B cap season in April 2020. In the past, employers were required to file new H-1B visa petitions beginning April 1 of each fiscal year. Once the submission period was closed (usually within the first week), the USCIS would then conduct a random lottery of all submitted H-1B visa petitions and only those chosen in the lottery would be accepted for processing by the USCIS.

Under the new procedures, employers will be required to electronically register and pay a $10 registration fee to register each H-1B visa petition they plan to file. Employers will be able to file H-1B visa petitions for only those registrations that are chosen in a random lottery.

• The order by which the USCIS selects petitions under the H-1B visa cap and the advanced degree exemptions are reversed.

Previously, the H-1B visa cap afforded H-1B submission opportunities to 65,000 foreign nationals with a bachelor's degree or higher from a U.S. institution or the foreign equivalent, plus an additional 20,000 for foreign nationals with a master's degree or higher from a U.S. institution. Under the new rules, the 65,000 H-1B visa petition opportunities will apply to foreign nationals with a master's degree or higher from a U.S. institution, and the 20,000 will be for those with a bachelor's degree or higher from a U.S. institution or the foreign equivalent.

• A $10 registration fee will be required for each registration made.

The $10 registration fee will be paid using the USCIS pay.gov portal and will permit payments to be made from a bank account (checking or savings), credit card or debit card. The registration fee cannot be paid using cash, a certified bank check or a money order. Employers will not need to create a pay.gov account to pay the fee – they will just need to provide basic payment details, such as credit card details or bank account details. Employers and their legal representatives can pay the $10 registration fee and the beneficiary is not to pay the registration fee.

What Does Registering Entail?

The registration will require basic information about the employer's company and each intended worker. Each employer and its representatives will need to set up required registration accounts, which can be established prior to March 1. Although USCIS has yet to issue detailed instructions, it is expected that it will require registrants to utilize a myUSCIS account for the registration process. The myUSCIS portal "H-1B Registration" section is not yet functional.

USCIS is scheduled to publish step-by-step instructions for setting up a myUSCIS required registration account, or you can view these step-by-step instructions.

Once the required registration account has been established, the new H-1B visa lottery registration can be accessed through the employer's actual myUSCIS portal when it opens on March 1.

When Is the Registration Period?

Registration will open on March 1, 2020, and will close on March 20, 2020.

What Kind of Information Will Be Required About the Company During Registration?

Although the USCIS has not yet published official information, based on screen shots and information regarding the electronic H-1B registration process that USCIS published in November 2019, we expect the following information to be required for employers:

• complete legal name of the petitioning employer company or organization
• the d/b/a name of the petitioning employer company or organization, if any
• employer identification number (EIN) of the petitioning employer or organization
• primary U.S. office address of the petitioning employer or organization
• legal name, title and contact information (daytime telephone and email address) of the employer's signatory

What Kind of Information Will Be Required About the Intended Worker During Registration?

• beneficiary's legal name
• beneficiary's gender
• indication of whether the beneficiary has a Master's degree or higher from a U.S. institution of higher education in support of the beneficiary being eligible for the advanced degree exemption
• beneficiary's date of birth
• beneficiary's country of birth
• beneficiary's country of citizenship
• beneficiary's passport number

Can a Registration Be Prepared and Reviewed Prior to March 1?

At this time, it is not possible, but it could become possible if USCIS allows it.

May a Registration Be Edited or Amended After It Has Been Submitted?

USCIS has advised that during the registration period, it will permit users to review and edit registration as many times as needed prior to submitting the registration. Once the registration is submitted, USCIS will not permit any editing or amendments. However, it appears that USCIS will permit a registration to be deleted, then a new registration drafted and submitted during the registration period.

If a Company Has Multiple Affiliate Companies, Can Each Entity Submit a Registration for an Intended Worker if Each Has a Federal EIN?

The answer to this inquiry is the same as it currently is for pre-registration paper submissions. More than one entity can file a registration for the same intended worker as long as each entity is real, there is a legitimate business need at each company and each job opportunity is a separate job opportunity. In this situation, it will be important for the entities to be prepared to establish the legitimate business need because if they are unable to do so, the petitioning employers run the risk of having the approvals for all of the cap-subject petitions filed by affiliated entities for the same beneficiary denied or revoked.

How Are F-1 Student Visa Holders Affected by the Registration Process?

Currently, only F-1 student visa holders who have a timely filed H-1B visa petition filed on their behalf will receive the H-1B cap gap benefits through Oct. 1, as long as the H-1B visa petition is not denied, revoked, rejected or withdrawn prior to such date. As such, the registration alone is not sufficient to extend an F-1 student visa holder's status and their employment authorization under Optional Practical Training (OPT).

How Will Employers Know Their Registrations Have Been Selected in the Lottery?

The USCIS has not yet published details about the notification process, but it will likely be through the myUSCIS portal.

If a Registration Is Selected, How Long Will an Employer Have to Actually File an H-1B Visa Petition?

Petitioning employers will have at least 90 days from the date the registration is selected to submit a complete H-1B visa petition to USCIS.

Can Holland & Knight Submit an Employer's Registration?

Based on what we know as of today, yes, legal counsel can submit an employer's registration as the Attorney of Record, as long as a Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative) also has been filed by that attorney.

How Can Holland & Knight Assist You?

Holland & Knight immigration attorneys have extensive experience analyzing, preparing and submitting H-1B visa petitions. We will walk you through every step of the H-1B visa process, including the new registration procedures, and will initially require more information than the USCIS for the registration so we are able to confirm that the registration is viable and accurate. It is recommended that employers engage Holland & Knight to file the registration at the same time as the accompanying Labor Condition Applications, as well as to prepare any expected H-1B visa petitions. That way, if your registration is chosen in the lottery, you will be steps ahead of the game.

For more information about how the new H-1B procedures could specifically impact your company, contact Tara Vance or another member of Holland & Knight's Immigration, Nationality and Consular Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.