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Yesterday, February 6, USCIS held an instructional webinar for employers regarding the H-1B electronic registration system for this cap season. As part of the H-1B electronic registration system, employers will be required to create a Registrant account on the my.uscis.gov website for the purposes of filing under the H-1B cap. Through this account, the beneficiary’s registration will be added and then submitted.
What did we learn?
Based on the webinar and the Q&A session afterwards, we found that the majority of the information we have been previously provided was confirmed as accurate. Please note: this article addresses items from the previous blog post that had not yet been clarified or confirmed. If you have a question about the H-1B electronic registration system that has not been addressed in this article, look back at the blog posted on December 9, 2019 for more information.
When can the employer create the registrant account?
USCIS stated that registrants (employers) can create their accounts on the my.uscis.gov website starting 02/24/2020. During the webinar, USCIS representatives stated that the accounts should be available as early as 10am EST on the 24th.
When the registrant goes to create the account, they will be presented with three options, they should choose the option listed as “I am an H-1B Registrant”. This signifies that they are a company or employer wanting to sponsor an H-1B employee.
The information required for the processing of the H-1B electronic registration remains as follows:
Can my attorney be linked to my Registrant account?
Yes. During the webinar, USCIS showed that there is an option for a “representative passcode”. USCIS stated that they will go into more detail about linking the Registrant and Representative accounts during the February 11th webinar for Attorneys and Representatives.
Will any information regarding the offered position need to be provided as part of the electronic H-1B registration process?
You do not have to provide details on the offered position to the USCIS as part of the electronic registration process, such as the job title or the minimum job requirements.
Please note:Even though this is not required as part of the registration process, your attorney may still request information about the offered position to ensure that should the registration be selected, the company will have no issue during the H-1B filing stage concerning possible roadblocks because of the offered position.
Is there an option to draft the registration earlier than the submission date for attorney or client review?
USCIS representatives stated that the registration will be opened for drafting on March 1, 2020 at 12pm and no earlier. Registrants will only be able to set up their Registrant account prior to March 1.
May I edit a registration after it has been submitted?
During the registration period, USCIS will permit users to review and edit registrations as many times as needed before the registration is submitted. After a registration has been submitted, USCIS will not permit a registration to be edited. However, a registration may be deleted, and then re-drafted and re-submitted prior to the close of the registration period. If a registration is deleted and re-submitted, the original $10 registration will not be refunded and the Registrant will have to pay the $10 fee again for the re-submitted registration.
If an employer submits multiple beneficiaries per registration, and later identifies that the employer needs to withdraw one of those names, would the system force the employer to withdraw all names that had been submitted in that registration, thereby requiring the employer to resubmit the other names that it did not desire to withdraw from the registration system?
No. If the Employer identifies one beneficiary that needs to be deleted from the registration after submission, then they can delete the one beneficiary without deleting the other beneficiaries submitted with that registration. The employer will not receive a refund of the $10 registration fee for the beneficiary that is withdrawn after submission.
How will USCIS notify attorneys and employers of selection in the lottery?
USCIS will send notices electronically to all registrants with selected registrations that are eligible to file an H-1B cap-subject petition on behalf of the individual named in the notice within the filing period indicated on the notice. The notification will be added to the registration accounts. The account holder who submitted the electronic registration will receive an e-mail or text message stating that an action has been added to their account, and they will have to log into their account to see the full notice.
USCIS representatives stated during the Q&A session after the webinar that the selection notice will state the exact period the Employer will have to file the H-1B for the selected beneficiary and the service center where the H-1B should be filed. USCIS representatives did confirm that the service center listed on the selection notice may not match the corresponding service centers as listed on the USCIS website. Therefore, the Employer must pay close attention to the service center listed on the selection notice.
If the Employer moves after the filing of the registration, will this cause an issue when filing the H-1B should the registration be selected?
At this time, we do not have clarity on this question. USCIS representatives were posed this question during the Q&A period after the webinar. USCIS representatives stated that they would have to take this question “off-line” and address at a later period.
Will there be a notice provided to registrants who are on a “waitlist”?
Based on USCIS officials’ response: no notice will be provided to a beneficiary or Registrant if a beneficiary is not selected in the lottery and continues to remain on the “waitlist”. It appears that until the lottery is completed and until the end of the fiscal year, the beneficiary’s status will reflect “submitted”, as in their registration has been properly submitted but not selected in the lottery. When the lottery is completed and at the end of the fiscal year, the beneficiary’s status will change to “unselected” within the registration system. It is unclear whether there will be a notice provided to beneficiaries not selected in the lottery once the lottery is completed to let them know that their status has not been updated to “unselected”.
The regulations seem to indicate that cases that are not filed will be flagged for fraud, but is there a mechanism to deal with situation where cases aren’t filed for legitimate reasons?
DHS has not indicated the exact process through which fraudulent cases will be addressed or any method of redress. However, in the preamble to the H-1B registration final rule, DHS notes that cases that demonstrate a pattern and practice of potential abuse of the registration system will involve a case-by-case review of the facts involved, including any mitigating facts or circumstance. It further notes that registrants that have been found to engage in a pattern and practice of submitting registrations for which they do not file a petition following selection could be subject to monetary fines or criminal penalties pursuant to 18 U.S.C. 1001(a)(3) for making false statements and misrepresentations to the government.
If a registrant is selected and has a bona fide reason for a delay in filing past the 90 day filing period, what mechanism can be used to communicate the reasons for the delay?
The preamble to the H-1B registration final rule indicates that “After … selection, petitioners will be notified by USCIS of the exact amount of time allowed for filing the petition, which will in all cases be at least 90 days, but may be longer at the discretion of USCIS.”
It is not clear at this time whether or not and to what extent there will be a formal mechanism for requesting longer than the minimum 90 day filing period. USCIS has not officially indicated that it will consider nunc pro tunc requests along with a late petition filing.
Is a beneficiary required to have completed the qualifying degree requirement at the time of electronic registration or at the time of filing the H-1B petition?
As of the webinar yesterday, the language within the registration was unclear on this matter. During the Q&A session after the presentation, USCIS representatives clarified and confirmed that a Beneficiary will not have had to completed the qualifying degree requirement at the time of the electronic registration and per H-1B guidelines, the qualifying degree requirement will have to be completed at the time of filing the H-1B petition should the beneficiary be chosen in the lottery.
What happens if the entire online registration system crashes or experiences major system issues?
The USCIS officials stated there is a possibility that they will use the paper filing system if this happens. However, they did not provide further details. We strongly recommend that companies, employees, and attorneys be ready to file paper cases quickly in case this happens.
What else should the employer be aware of?
That is what we have for now. Stay tuned! We will provide an update on the H-1B electronic registration system after next week’s instructional webinar for attorneys and authorized representatives.