We posted on December 9 about the update by USCIS that it will implement a requirement that employers seeking to file H-1B cap-subject petitions for fiscal year (FY) 2021, including those eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee to determine if they may file an H-1B cap-subject petition.
Per USCIS, under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that will require only basic information about their company and each requested worker. USCIS will open an initial registration period from March 1 through March 20, 2020. USCIS will then run a random selection process on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.
DHS indicates that it intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration process. USCIS has indicated that it will conduct further outreach and training prior to the initial implementation of the registration system to allow the public the opportunity to familiarize themselves with the electronic registration process. USCIS has also indicated that it will provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period.
Below are answers as provided by AILA (American Immigration Lawyers Association) through their Practice Pointers bulletin (AILA Doc. No. 19121838) on frequently asked questions regarding the H-1B electronic registration process.
Electronic Registration Process
1. On what website or platform will USCIS host the electronic H-1B registration process?
AILA anticipates that USCIS will use the myUSCIS online portal to house the electronic H-1B registration process. The myUSCIS online portal currently permits online filings of forms such as Form I-90, N-400, N-600, and I-130, among others. Although the myUSCIS portal currently lists “H-1B Registration” on the list of forms that are available to file online, the myUSCIS portal does not yet permit H-1B registrations to be prepared or submitted.
2. What information will be required for the electronic registration process?
The electronic registration form will request basic information about the prospective petitioning company or organization and employee. Based on screen shots and information regarding the electronic H-1B registration process that USCIS publicly released in November 2019, it appears that the following information will be required for the registration process:
• Legal name of the prospective petitioning company or organization
• The Doing Business As names of the prospective petitioning company or organization, if applicable
• Employer identification number (EIN) of the prospective petitioning company or organization
• Primary U.S. office address of the prospective petitioning company or organization
• Legal name, title, and contact information (daytime phone number and email address) of the authorized signatory
• Beneficiary’s legal name
• Beneficiary’s gender
• Does the beneficiary have a master’s or higher degree from a U.S. institution of higher education such that the beneficiary is eligible for the advanced degree exemption under INA 214(g)(5)(C) and requesting consideration under the advanced degree exemption?
• Beneficiary’s date of birth
• Beneficiary’s country of birth
• Beneficiary’s country of citizenship
• Beneficiary’s passport number
3. Will any information regarding the offered position need to be provided as part of the electronic H-1B registration process?
No information regarding the offered position will be required to be provided to USCIS as part of the electronic registration process, such as the job title or the minimum job requirements. Nevertheless, our office plans to evaluate the offered position and the credentials of the beneficiary in advance of submitting an electronic registration to ensure that the registration submitted is bona fide and non-frivolous.
4. Will a Labor Condition Application (LCA) be required as part of the electronic registration process?
An LCA is not required to be completed prior to the electronic registration process. Based on the needs of your case, our office may determine that it is necessary to prepare and submit LCAs for beneficiaries in advance of the electronic registration process. This will be determined after a review of the case file by our office.
5. May attorneys or law firms submit electronic registrations on behalf of clients?
Attorneys may submit registrations on behalf of clients provided they have a Form G-28 submitted for each client. AILA anticipates that the process for electronically submitting Form G-28 for purposes of this electronic registration process will mirror the process by which Form G-28s are currently submitted to USCIS for electronic filings via the myUSCIS portal, such as for electronically filed Form I-90s. The method for submitting Form G-28 for the electronic registration process may involve a two-factor authorization process.
6. On what date will the registration process open?
USCIS has announced that it will open an initial registration period on March 1.
7. How long will the initial registration filing window remain open?
The initial registration period will remain open from March 1 through March 20, 2020.
8. Is there an option to draft the registration earlier than the submission date for attorney or client review?
It is unclear whether USCIS will allow access to the electronic registration system in advance of the initial registration period, which opens on March 1, 2020. We will update when an answer has been provided.
9. 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, it appears that USCIS will not permit a registration to be edited. It appears, however, that a registration may be deleted, and then re-drafted and re-submitted prior to the close of the registration period.
10. Once we submit a registration, what if we later want to add more beneficiaries and we’re still within the initial registration period? Will that be permitted?
During the registration period, USCIS will permit registrants to continue to submit registrations for additional beneficiaries as needed.
11. If an employer submits multiple beneficiaries, let’s say ten names, per registration, and later identifies that the employer needs to withdraw one of those ten names, would the system force the employer to withdraw all ten names that had been submitted in that registration, thereby requiring the employer to resubmit the nine names that it did not desire to withdraw from the registration system?
There is currently no guidance on this question. It appears USCIS will assign each individual beneficiary with his or her own registration number, which could allow for each beneficiary to be handled separately after submission of a registration.
Registration Fee Payment
12. Will there be a registration fee required?
Yes. USCIS will require a $10 non-refundable fee for each registration submitted.
13. What method will USCIS accept payment of the $10 registration fee?
USCIS will solicit payment of the registration fee using the Pay.gov portal. The registration system will permit payments to be made from a bank account (checking or savings), a credit card, or debit card. No Automated Clearing House (ACH) fee will be charged. The registration fee cannot be made using cash, a certified bank check, or money order. Employers will not need to create a pay.gov account to pay the fee, instead they will just need to provide basic payment details.
14. If an employer is registering multiple beneficiaries, can the employer pay for all of their registrations at one time?
Yes. The registration system will allow for batch payments to pay the fee for multiple registrations submitted simultaneously. Corporate and payment information will only need to be entered one time for each batch of registrations. However, the corporate and payment information will not carry over between each subsequent batch of registrations.
15. Who can pay for the $10 registration fee (e.g. the employer, the legal representative)? Will beneficiaries be allowed to pay the $10 registration fee?
Registrants and Form G-28 representatives will be able to pay the registration fee via the Pay.gov portal. In the registration fee final rule, it is noted that “the fee paid for the registration is a responsibility of the petitioning employer, not the foreign worker.”
Registration Selection Process
16. How will USCIS notify attorneys and employers of selection in the lottery?
USCIS will notify all registrants who have properly registered that their registrations have been selected; however, the exact method of notification is unknown at this time. AILA anticipates that USCIS will provide notification regarding the status of each registration directly through the myUSCIS portal, which will house the electronic H-1B registration process.
17. How will the wait list be implemented?
If USCIS receives more than enough registrations than needed to meet the regular H-1B cap and advanced degree exemption, all registrations that were not selected in the lottery will remain on reserve for the applicable fiscal year. If USCIS needs to select more registrants to meet the regular cap and/or the advanced degree exemption, USCIS would select from among the registrations that are on reserve a sufficient number to meet the cap or advanced degree exemption, or re-open the registration period if additional registrations are needed to meet the new projected amount.
It is unknown how reserved registrations will be selected, including whether masters’ cases will be prioritized. We will monitor this issue and provide an update when there is an answer.
18. Will there be a notice provided to registrants who are on a “waitlist”?
USCIS has not provided guidance on this, but AILA believes that USCIS will provide a notification regarding the status of each registration directly on the H-1B electronic platform, which AILA anticipates will be run on the myUSCIS portal.
H-1B Petition Filing Period
19. Once a registration has been selected, how long will the petitioner have to submit a complete H-1B petition to USCIS?
Petitioners will have at least 90 days from the date of a registration selection to submit a complete H-1B petition to USCIS.
20. 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.
21. If a registrant is selected and has a bona fide reason for a delay in filing past the 90 day, 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.
22. If a company has multiple entities (e.g., subsidiary, affiliate, and parent), can each entity submit a registration if they have a Federal Employer Identification Number (FEIN)?
The answer to this question is the same for a normal paper form H-1B and online registration. As long as there is a legitimate business need for each petition/petitioner and there are two real and separate job opportunities, then each entity can submit a registration for the same beneficiary. Each petitioner must be able to establish the legitimate business need. If not, the petitioner will risk having the approvals for all the cap-subject petitions filed by “related entities” for the same beneficiary denied or revoked.4
23.Will there be a paper filing registration option or is this H-1B registration lottery process exclusively online?
Based on the information provided by USCIS to date, registrations must be submitted electronically. Paper filed registrations will not be accepted through the postal service or otherwise.
F-1 Student Issues
24. What effect will the H-1B cap registration process have on H-1B petitions for beneficiaries who are seeking cap-gap protection?
H-1B cap-gap benefits only attach upon filing the H-1B cap petition, not upon filing the H-1B electronic registration. Therefore, only those individuals selected through the H-1B registration process and who have an H-1B cap petition requesting an October 1 start date timely-filed on their behalf will have their duration of status, and any applicable employment authorization, automatically extended until October 1, unless the petition has been rejected, denied, revoked or withdrawn prior to that date.
25. 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?
USCIS states multiple times in the preamble to the H-1B registration final rule that establishing eligibility is not a requirement for registration and that it is simply an “antecedent procedural which requires that eligibility must be established at the time of filing the benefit request.”
However, the answer to this question is not as clear in regards to qualifying for the masters’ cap exemption, as a question on the electronic registration form (as reflected in the screen shots published in November 2019 by USCIS) asks “[d]oes the beneficiary have a master’s or higher degree from a U.S. institution of higher education such that the beneficiary is eligible for the advanced degree exemption under INA 214(g)(5)(C) and requesting consideration under the advanced degree exemption?” This question is phrased in the present tense, indicating that eligibility for the advanced degree exemption may need to be established at the time of registration. AILA flagged this discrepancy in its comment to USCIS on the H-1B registration tool on November 8, 2019, and to date it has not been addressed. AILA will monitor this issue and update this practice pointer as soon as more information becomes available.
26. If we encounter technical issues with completing and submitting the registration form online, who can we contact to address the issue?
USCIS has not yet addressed this issue. AILA will engage with USCIS to clarify ways in which stakeholders can flag technical issues for USCIS that may arise when completing and submitting the electronic registration.
As it can be seen, the H-1B cap application process is changing from what it has been for the past few years. As USCIS continues to provide information on the H-1B electronic registration, we will continue to provide updates.
If you have questions regarding the H-1B application process, or the new H-1B electronic registration system, you can contact our office via phone at (919) 833-0840, through Facebook, or through our Contact Us form.