On January 31, 2019, the United States Citizenship and Immigration Services (USCIS) issued a final rule making significant changes to how it will conduct the annual cap-subject H-1B lottery process.
The rule creates an online “pre-registration” and selection requirement for companies intending to use the H-1B visa program to sponsor foreign workers.
The Acting Director of USCIS, Ken Cuccinelli, recently announced that he believes USCIS will be ready to implement the online registration tool for the next fiscal year (fiscal year 2021, beginning October 1, 2020). He stated that USCIS would make a formal announcement by the end of calendar year 2019 as to whether the registration system would in fact be required for the coming fiscal year.
Although the rule became final on January 31, 2019, before USCIS conducted the lottery for fiscal year 2020, the agency deferred implementation of the pre-registration requirement until fiscal year 2021 in order to design the online registration system and complete user testing.
The online registration tool is not yet available on the USCIS website nor has USCIS announced the dates for the registration period. However, USCIS did announce in September of this year that it is proposing a $10 registration fee for each electronic registration submitted to USCIS.
Each year for the past several years, the demand for H-1B visas has far outpaced the statutory limitation of 85,000 visas (with 20,000 designated specifically for graduates of U.S. Master’s degree programs). The result has been that organizations wishing to utilize the H-1B program must file a petition with USCIS for any worker they wish to sponsor on April 1 of each year, which is the earliest date to apply for an H-1B visa for the following fiscal year beginning October 1.
In past years, USCIS has then conducted a lottery of those petitions, accepting and receipting the petitions randomly selected in the lottery, and rejecting and returning the remaining ones.
The new rule creates an electronic registration process for organizations seeking to file H-1B petitions on behalf of workers. Organizations would need to submit an electronic registration for each potential beneficiary on whose behalf they wish to file an H-1B petition. The registration period would open at least 14 calendar days before April 1 of each year, and would remain open for at least 14 calendar days. Under the final rule, USCIS will announce the start of the registration period at least 30 days prior to its opening date.
If insufficient registrations are received to meet the annual cap, USCIS will extend the registration period as appropriate to meet the annual cap.
USCIS would then randomly select beneficiaries registered in the electronic system. USCIS will notify petitioners if a registration is selected and advise the petitioner that it may file an H-1B petition on the beneficiary’s behalf. Petitioners will only be able to submit H-1B petitions for beneficiaries whose registrations are selected. USCIS will provide on the notice of selection the exact filing period in which the Petitioner must file its H-1B petition. Under the final rule, USICS will provide at least 90 days for this filing period, although it may be longer at the discretion of USCIS.
Final details and instructions regarding the online registration system are yet to be announced.
If you have questions about the H-1B visa program or other employment-based visa options, please contact Kolko & Casey, P.C. at (303) 371-1822 to schedule a consultation with an experience immigration attorney.
