Once again, H-1B season is upon us. In past years, cap-subject petitions were traditionally filed during the first week of April, with the annual quota of 85,000 slots filling almost immediately within that first week. This meant that employers and their attorneys had to prepare complete submissions beginning as early as February and up until the end of March in order to ensure that all petitions were filed immediately once the cap opened on April 1st. Complete filings included all requisite forms, filing fees, and extensive supporting evidence. These packets were sent out even though there was no certainty of selection for adjudication. Once USCIS completed its lottery, eventually, the lucky petitioners received receipt notices while filings for unselected cases were returned with rejection notices several months later.
Last year, USCIS announced the implementation of an electronic registration process for FY 2021. This meant that petitioners and their attorneys would first need to register online and pay a $10 registration fee per beneficiary before filing. Only once petitions are selected for filing are prospective employers required to submit completed H-1B cap-subject petitions.
Barring any complications or server crashes, this process will dramatically streamline processing by reducing paperwork and data exchange and will ultimately bring overall cost savings to employers since they will no longer be required to prepare and submit an entire H-1B cap-subject petition that does not get selected for processing.
CIS first announced the implementation of the electronic registration back in December of 2019. In January of 2020, CIS published a Federal Register notice, formally announcing the implementation of this registration process for FY 2021. In mid-February, USCIS held several webinars for registrants and their representatives regarding the registration process.
The registration process requires the input of very basic information about the prospective employer and each requested worker for whom they sought to file an H-1B petition on behalf of. In order to register, employers and authorized representatives need a myUSCIS account. Although accounts can be created beginning February 24th, registrants and representatives must wait until March 1st when the registration period opens in order to create and submit registrations. There is a non-refundable H-1B registration fee of $10 for each beneficiary.
USCIS will notify registrants and representatives with selected registrations via their USCIS online accounts by March 31. Employers may begin filing applications for selected registrants on April 1, 2020. The USCIS online account will show one of four status updates: Submitted; Selected; Not Selected; or Denied. Submitted registrations remain in consideration for selection until the end of the fiscal year. If selected, petitioners will be notified of the exact amount of time allowed for filling, which will in all cases be at least 90 days, but may be longer.
In the unlikely event that USCIS determines that it needs to increase the number of registrations to meet the cap, it will select registrations held in reserve. DHS notes that the period of at least 90 days to file an H–1B cap-subject petition after registration selection also applies to those selections that occur outside of initial registration selection (e.g. selections following a reopening of the registration period). In each instance, following selection of the registration, the employer will be given at least 90 days to file the H–1B cap-subject petition on the basis of that registration selection. If the same registrant or representative submitted more than one registration on a beneficiary’s behalf, all registrations for said applicant will be invalid and denied. Registrants/representatives will not be notified until the end of the fiscal year if they are not selected.
The registration process timeline is as follows:
- Mar. 1st – H-1B registration period opens at 12 pm E.T.
- Mar. 20th – H-1B registration closes at 12 pm E.T.
- Mar. 31st – Latest date by which USCIS intends to notify registrants and their representatives with selected registrations.
- Apr. 1st – The earliest date that FY 2021 H-1B cap-subject petitions may be filed.
With the registrations now open up and the subsequent filing period fast-approaching, it is best to speak with an experienced attorney about the entire H-1B process in order to get a head start and plan accordingly. Here at W&O’, our team of experienced attorneys have dealt with numerous H-1Bs over the years. Moreover, we have been tracking the recent news regarding the registration process since it was first announced and have sat in on all relevant seminars regarding the same.
ABOUT THE AUTHOR(S)
NANCY VO – ATTORNEY
Nancy Vo is an Associate Attorney at Wilner & O’Reilly. She graduated Magna Cum Laude from Whittier Law School. While at Whittier. She was an editor on Whittier Law Review and earned a CALI award in Legal Writing. She earned a Bachelor’s Degree in Political Science and Public Law from the University of California, San Diego. She works in the firm’s employment-based practice where she focuses on non-immigrant applications for Aliens of Extraordinary Ability, L-1 intra-company transfer visas for executives and managers, and E-2 treaty visas. Ms. Vo grew up in Los Angeles with three older sisters and parents who were all refugees from Vietnam. She is a first generation Vietnamese American and the first in her family to enter the legal field.
RICHARD WILNER – FOUNDING PARTNER
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.