Immigration Under Biden Administration: H-1B Visa Cap Registration Period

In the first few weeks under the new Biden Administration, the United States has already seen the unraveling of some of the more restrictive measures taken by the Trump Administration, and more dismantling is expected to come. (See Holland & Knight's previous alert, "Immigration Under Biden Administration: Changes in the First 100 Days," Jan. 26, 2021.) This Holland & Knight alert details the upcoming H-1B Visa Cap Registration Period and related procedures. As new immigration changes are implemented, Holland & Knight will continue to advise clients accordingly.

When Is the Registration Period?

The registration period for the fiscal year (FY) 2022 H-1B cap will open at noon EST on March 9, 2021, and run through noon EST on March 25 (the H-1B Visa Cap Registration Period).

What Is the Purpose of the Registration Period?

During the H-1B Visa Cap Registration Period, prospective employers (petitioners) and their representatives will be able to provide U.S. Citizenship and Immigration Services (USCIS) with employer and prospective employee (beneficiary) information in order to have the chance to file an H-1B visa petition for the named beneficiary reflected therein.

How Will It Work?

Prospective petitioners and their representatives will be required to create and use a myUSCIS online account to register each beneficiary electronically for the H-1B visa petition selection process and will be required to pay a $10 non-refundable registration fee for each beneficiary registration. Prospective petitioners submitting their own registrations (U.S. employers and U.S. agents, referred to as "registrants") will use a registrant account that is not yet available but which is expected to be available soon. Representatives filing registrations for clients may add clients to their myUSCIS accounts at any time, but both registrants and representatives must wait until March 9 to enter beneficiary information and submit the $10 registration fee. Once each registration is filed, a confirmation number will be assigned to the registration, and this number will be used solely to track the registration.

What Is a MyUSCIS Account and Is It Really Needed?

Each prospective employer must create a myUSCIS account and either file its own registration or confirm the registration information entered by Holland & Knight, as the Attorneys of Record, and authorize your attorney to proceed to file the registration for the employer. Prospective petitioners and their representatives will be able to submit registrations for multiple beneficiaries in a single online session.

Where Can I Find Helpful Information?

For general information about the H-1B registration process, visit the USCIS website's H-1B Electronic Registration Process overview.

Where Can I Find Help Setting Up a MyUSCIS Account?

To create your company's required myUSCIS account, watch this short video from USCIS with screen shots and follow the instructions.

Note: If you want Holland & Knight to file H-1B registration(s) for the company, when you create your myUSCIS account, it is important when you choose your category that you choose "I am an H-1B registrant" and not "I am an applicant, petitioner, or requestor." If you want to file your own registrations, you would choose the "I am an applicant, petitioner, or requestor" classification.

Can I Start the Process Now?

At this time, you will only be able to create your myUSCIS account. You will not be able to do anything else within your myUSCIS account until noon on March 9, 2021, when registration opens, but it is important to create your myUSCIS account so that you are ready and know the system is working. On or shortly after March 9, when Holland & Knight is able to input your registration details into the firm's myUSCIS account, your attorney will send you a "Representative Passcode" assigned by the USCIS for your registration, which you will need to use to link your myUSCIS account for the registration to Holland & Knight's draft registration for your company, review the draft registration, and confirm it is satisfactory so that counsel can submit it. Once Holland & Knight has received confirmation through the firm's myUSCIS account that you have reviewed and authorized the firm to file the registration, your attorney will do so.

Can Registrations Be Edited or Saved Prior to Submission?

Through the registrant's or representative's myUSCIS account, registrations can be prepared, saved and edited but only prior to final payment and submission of the registration. Once the registration is submitted, no changes can be made.

What Happens to the Registrations Received by USCIS?

If USCIS receives more registrations than it is able to process because of the H-1B visa cap by March 25, 2021, it will randomly select registrations and send selection notifications to the applicable myUSCIS account.

When Will USCIS Begin Notifying of Selected Registrations?

USCIS intends to commence notifying account holders by March 31, 2021.

Does This Affect the H-1B Selection Process Final Rule Instituted by the Trump Administration?

No, but the USCIS has announced that the U.S. Department of Homeland Security (DHS) is delaying the effective date of the H-1B Selection Process final rule, which places the focus of the H-1B visa lottery on salary, until Dec. 31, 2021, and will instead continue with the previous H-1B random selection criteria.

What Is the Background for This Registration Process?

In 2020, USCIS implemented an electronic registration process for all initial H-1B visa petitions wanting to be filed, requiring all prospective employers to electronically register and pay a $10 registration fee for each prospective beneficiary. The information required for the registration is basic information about the prospective employer and the prospective employee. Only those registrations selected can then result in an H-1B visa petition being filed by the prospective petitioner on behalf of the prospective employee as reflected therein.

Any Additional Advice?

The registration process is quite unforgiving. It is recommended that prior to submitting a registration or having a representative submit a registration on your behalf that you review very carefully all of the information and ensure that all of the information is accurate. If there is an error, it is likely that it cannot be fixed and it can result in your registration being ineligible for selection.

How Can Holland & Knight Assist You?

Holland & Knight has a solid team of transactional and litigation lawyers skilled at analyzing options, preparing and submitting petitions and applications for immigration benefits and suing the government, as and when necessary. Even though our attorneys are working remotely at this time, they remain readily available to assist you in discussing options and taking any action needed, including filing a registration. If you have any questions about the current immigration landscape, please 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, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.