Plan Now for H-1B Cap Registration

USCIS formally confirmed that it will implement its new electronic registration process for the fiscal year (FY) 2021 H-1B cap season. The initial registration period will run from March 1 through March 20, 2020.

WHAT’S NEW THIS YEAR

• Cap-subject H-1B employers intending to sponsor H-1B workers must first register each intended beneficiary electronically with USCIS during the registration period.
• There is a $10 government fee for each registrant.
• If the number of registrations exceeds the number of H-1B visas available under the annual quota as expected, USCIS will randomly select a sufficient number of registrants projected to reach the FY2021 H-1B cap. The random selection process will occur after the initial registration period closes on March 20, 2020. USCIS intends to notify those selected no later than March 31, 2020.
• Employers will have a 90-day window during which to file H-1B cap petitions for selected registrants. The petition filing period is expected to start not later than April 1, 2020.
• Employers may file an H-1B cap petition for selected registrants only; no substitutions are permitted.

REGISTRATION HIGHLIGHTS

• In completing the registration, employers must identify whether an individual qualifies for an H-1B pursuant to the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher) or the standard H-1B cap.
• Employers may register multiple individuals at once, using a single online “batch” submission.
• An employer may only submit one registration per intended beneficiary in any fiscal year. If an employer registers a beneficiary more than once in the same fiscal year, all registrations submitted by that employer for that beneficiary will be invalidated.
• The registration may be prepared and submitted by the employer’s authorized representative.

WHAT SHOULD EMPLOYERS DO NOW?

Employers should work with counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S. and to take appropriate steps to ensure timely online registration of identified candidates. Potential beneficiaries include, but are not limited to:

• New hires from overseas
• F-1 students completing a qualifying course of study or currently working pursuant to Optional Practical Training
• Some L-1 visa holders
• TN, E-3 and other nonimmigrant visa holders who wish to change to H-1B status in the coming year
• H-4 dependent EAD holders. As the Administration has indicated that it intends to eliminate work authorization eligibility for the H-4 spouses of certain H-1B visa holders, employers may wish to consider filing cap petitions for these individuals.
• Some L-2 or E dependent EAD holders

BACKGROUND

H-1B Categories and Annual Quotas

H-1B petitions generally fall within two categories:

• “Standard” Cap Petitions. The minimum educational requirement for a standard H-1B petition is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
• S. Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

H-1B Petitions Not Subject to the Cap 

As a reminder, certain H-1B petitions are not counted against the annual cap, including:

• Individuals in H-1B status previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
• Petitions filed by cap exempt organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt, and may be filed any time throughout the year.

USCIS intends to publish more information about the cap registration process in the weeks ahead. Gibney will provide additional information as it becomes available.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.