Changes to H-1B Cap Season Coming in 2020

Beginning with fiscal year 2021 H-1B cap-subject petitions, USCIS is expected to implement an electronic registration requirement, which will require petitioners seeking to file H-1B petitions subject to the cap to first electronically register with USCIS during a designated registration period.  Petitioners will no longer be required to prepare and file complete petitions for every petition submitted in the lottery.  Rather, petitioners will be required to submit certain information when electronically registering to allow USCIS to conduct the lottery and select enough H-1B petitions to receive and adjudicated under the cap.  Once USCIS completes the lottery, only those with a selected registration will be eligible to submit an associated cap H-1B petition. 

Please note that there remains a lot of uncertainty regarding this new process, including exactly when registration will open, and how much time employers can expect to have to prepare and file petitions once they have been selected. Although USCIS has not yet provided specific details about the implementation of the electronic registration process, the published final rule tells us the basics of what to expect.    

The electronic registration process will start before April 1, in advance of the period during which H-1B petitions can be filed for the new fiscal year.  The registration period will begin at least 14 calendar days before the first day of filing and would last for a minimum period of fourteen calendar days.  USCIS will announce the start date of the initial registration period on the USCIS website at least 30 days in advance of the opening of the registration period.  USCIS will also announce the final registration date on the USCIS website. 

Each electronic registration submitted by the petitioner will likely need to include at least the following basic information:

  • Employer’s name, employer identification number (EIN), and employer’s mailing address;
  • Employer’s authorized representative’s name, job title, and contact information;
  • Beneficiary’s full name, date of birth, country of birth/citizenship, gender, and passport number;
  • Whether the beneficiary has obtained a U.S. Master’s degree or higher; and
  • Employer’s attorney (electronic submission of Form G-28 may be required).

The petitioner will also be required to attest that the petitioner intends to employ the beneficiary consistent with the registration.  Each petitioner who submits a properly completed H-1B cap registration request online would receive an automatic electronic notification that the registration request has been received by USCIS. 

USCIS will notify all petitioners with selected registrations that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the named beneficiary within the designated filing period. If the petitioner’s registration was selected, the notice will indicate a filing location and the designated filing period during which the H-1B petition must be filed, and provide instructions on how to file.  USCIS will provide for at least 90 days to file a petition for which a registration has been selected, and USCIS will notify all petitioners of the exact amount of time allowed for filing the petition.  As is allowed under current regulations, petitioners will be able to file a petition based on a selected registration as much as 6 months prior to the start date.

Chin & Curtis, LLP will continue to monitor developments regarding the electronic registration process and will provide updates as additional information becomes available.