Still have questions about the new H-1B electronic registration system for FY 2021 cap season? Start here.
Employers recently saw one of the most significant changes to the H-1B cap process in memory. In December 2019, U.S. Citizenship and Immigration Services (USCIS) issued a final rule implementing a new electronic registration system for FY 2021 cap season that upends the old lottery process for sponsoring employers. Although there are some risks associated with this change, employers can confidently secure work authorization for their employees by staying informed and thinking ahead.
Envoy sat down with GIA Managing Attorney Anne Walsh to learn more about electronic registration and what employers need to know.
Five H-1B electronic registration questions from employers, answered
EG: What exactly is the new electronic registration system?
AW: Electronic registration changes the H-1B cap process from a single stage process to a two stage process. In previous years, employers and their attorneys would begin petition preparation before the first business day of April, at which point USCIS would begin accepting petitions for the next five business days. Once this period ended, they would conduct the lottery to select 85,000 H-1B beneficiaries and notify the sponsoring employers by paper receipt notices. Petitions not selected would be returned.
This year, employers do not have to prepare a full petition to enter the lottery—they will instead electronically register foreign nationals they wish to sponsor on a designated government website expected between March 1st and March 20th (* USCIS has yet to confirm specific registration dates). For each employee or candidate that an employer registers, there is a mandatory $10 fee. Then, expected between March 21st and March 31st, USCIS will conduct the lottery to select the 85,000 beneficiaries for this year’s cap, and sponsoring employers will be notified electronically. Following this, employers will have an expected 90 days to prepare and submit a full H-1B visa petition for their employees.
EG: What information are employers required to provide when submitting that electronic registration?
AW: We don't yet have visibility into the final and exact information requirements for electronic registration, but we anticipate that it will include information on both the sponsoring employer and foreign national. For the employer, this includes the company name, mailing address, federal identification number, and employer's authorized representative, name, job title and contact information.
Applicant information may include his or her full name, country of birth, date of birth, country of citizenship, gender and passport number.
If there is an attorney assisting with the registration, USCIS may also request their information.
EG: How can employers prepare ahead of electronic registration?
AW: While electronic registration might seem simpler than the former process, the H-1B visa petition itself has not changed, and we are in a period of heightened Request For Evidence (RFE) rates, where USCIS is more closely scrutinizing petitions. In addition, USCIS has indicated that they can investigate and sanction companies that submit registrations for unqualified employees. As a result, it's still absolutely critical to ensure that each H-1B case is properly vetted and analyzed well before registration. Responsible employers should make sure that every foreign national they are sponsoring is qualified, and that there are no better visa options available for him/her.
USCIS has also said that under this new system, selected petitions will be adjudicated on a first come, first serve basis, which means that the longer it takes to get the petition submitted, the longer it likely will take for USCIS processing. Employers should work with their counsel to fully vet and analyze each sponsorship and to strategize how to best submit petitions in a timely manner, which will help minimize the risk of any start date delays or work authorization disruptions that could impact the business and foreign national.
EG: Are there any other risks employers should be aware of?
AW: In addition to potential delays, sanctions and RFEs, employers should be aware of a potential suspension of the system. USCIS has indicated that if at any time the electronic registration system becomes inoperable, they will suspend the system and go back to the prior submission process. In such an event, employers would be required to submit a full H-1B petition during the first five business days of April as in years prior, creating potential delays and extra work. This underscores the importance of early preparation and analysis of H-1B cases.
Get even more information to help you prepare for electronic registration in our latest webinar: H-1B Cap Prep: Final Checklist For FY 2021 Cap Season. Stay informed on the latest immigration news and policy updates by subscribing to the Envoy Immigration Blog.
Envoy is pleased to provide you this information, which was prepared in collaboration with Anne Walsh, who is a Managing Attorney at Global Immigration Associates, P.C. (www.giafirm.com), Envoy's affiliated law firm.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.