Getting Ready for the New H-1B Cap Pre-Registration Process

As many of our clients are already aware, the FY2021 H-1B cap season is just around the corner. As we have done in years' past, Goeschl Law Corporation will be reaching out to clients to confirm the employees included for this cap season. This year, the H-1B cap lottery process will be very different from the selection process used by the USCIS in the past. As many of our clients are also aware, there is an annual limit (the ‘Cap’) on the number of H-1B cap petitions that may be selected for processing each fiscal year. There are 65,000 ‘Regular Cap’ H-1B slots available, with an additional 20,000 reserved for graduates with advanced degrees from U.S. schools, (‘Master’s Cap’). In years where the demand for new H-1B's has exceeded the number of available slots, the USCIS has conducted a random selection process (the ‘lottery’) to determine which H-1Bs will be processed. As has been the case over the last several years, we expect that more H-1Bs will be requested than the number of available slots in this coming cap season, and the USCIS will select petitions for processing through the lottery procedure. Last year, USCIS received 201,011 H-1B petitions subject to the numerical limitation (“H-1B Cap”), including petitions filed under the advanced degree exemption, which was a slight increase of about 5.6% compared to number of petitions received in the previous year’s cap filing. In prior years, employers were required to file complete H-1B petitions on or after April 1st to be considered in the lottery for the next fiscal year starting on October 1st. Given the high demand over the last several years, these petitions would have had to have been filed during the first week of April to be considered in the lottery. On average, more than half of these petitions were rejected in the lottery each year, and the USCIS did not issue the rejection notifications until late June or July, creating a great deal of uncertainty for the employers and their prospective H-1B workers. On January 30, 2019, the USCIS published a final rule establishing an electronic ‘Pre-Registration’ process, whereby employers will be required to “pre-file” an electronic registration through a USCIS online portal for each employee or prospective employee it wishes to sponsor for an H-1B during the coming cap filing season. Each registration will require a $10 non-refundable fee and will need to be submitted during a designated registration period at least 14 days prior to the first day of filing on April 1st. If more registrations are received than available H-1B slots, which is expected, the USCIS will conduct a random selection process, or lottery, to determine which registrations are accepted. Only those petitions selected in the registration process will be eligible to file a complete H-1B petition during the filing season, and the USCIS will indicate a 90-day period during which the selected petition must be filed. Per the recent agency announcement, the USCIS intends to have the pre-registration system in place for the upcoming H-1B cap filing season, pending completion of its testing of the online portal. The USCIS is expected to provide a formal announcement on whether the pre-registration process will be implemented for FY2021 as well as notice of the registration period through publication in the Federal Registrar before the end of year. As of this writing, the USCIS has not yet published this notice. We will notify our clients as soon as this announcement is made, and we will be ready to file the registrations on behalf of our clients through the USCIS online portal as soon as the registration period begins.

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