Guide to H-1B Filing in 2020: Huge Changes to Cap Subject Petitions

This year brings significant changes to how cap subject H-1B petitions will be filed:

1. H-1B Registration — Petitioning employers must file an electronic registration for each worker for which the company will be seeking an H‒1B using the http://my.uscis.gov website. The registration window will run from March 1 through March 20. USCIS will be offering a training for employers on the H-1B registration system on Thursday, February 6, 2020 at 2:00 pm EST. Register here.
2. Employers must pay a $10 fee per worker registration using the http://pay.gov website.
3. H-1B Lottery — No later than March 31, USCIS will conduct a random selection of H-1B registrations (aka the H-1B lottery). Those selected will be notified and eligible to file H-1B petitions through the http://my.uscis.gov portal. Those registrations not selected will be held in reserve and may later be selected for processing.
4. Employers will have at least 90 days to file H-1B petitions. Cases will be adjudicated in the order received.
5. The electronic registration process may be suspended due to technology issues, in which case applications will need to be submitted on paper.

The electronic registration and filing system will require employers to be more involved than in previous years. The registration period opens soon and the H-1B registration tool remains in development. It seems that the system is being improved on a daily basis. Employers seeking sponsor new H-1B workers for the 2021 Fiscal Year should be ready for filing under the new system. Background The government has discussed an online system for conducting the H-1B cap subject lottery for many years. On January 31, 2019, USCIS issued a final rule announcing the implementation of such a system. H-1B registration would allow employers to participate in the H-1B lottery without preparing and filing H-1B petitions. Employers would only need to file petitions for workers who were selected under the registration process. USCIS calculated the registration program will result in hundreds of millions in cost savings. On September 4, 2019, USCIS issued a proposed rule for a registration fee requirement of $10 per H‒1B registration. The rule become final on November 8, 2019. The purpose of the fee was for cost recoupment. On December 6, 2019, USCIS announced that the registration system and accompanying fee would be implemented for the 2021 H-1B cap fiscal year. This meant that cap subject H-1B cases for workers starting on October 1, 2020 would be subject to the registration requirements. In addition to electronic registration, fiscal year 2021 H-1B cap cases will also be filed online through the http://my.uscis.gov website. Paper printed H-1B petitions will not be accepted. No announcement has been made yet regarding premium processing. USCIS recently announced on LinkedIn dates when attorneys and employers can begin creating H-1B registration accounts. Attorneys may begin creating H-1B registration accounts on February 18. Employers may begin creating H-1B registration accounts on February 24. Technology changes have also affected the Labor Condition Application. On May 16, 2019, the U.S. Department of Labor Office of Foreign Labor Certification announced implementation of the Foreign Labor Application Gateway (FLAG). Starting October 1, 2019, the Department of Labor began accepting Labor Condition Applications through the newly implemented FLAG system. Registration on My.USCIS.Gov My.USCIS.Gov is the web portal created by USCIS for filing of electronic immigration applications. The website has allowed the filing of applications to replace permanent resident cards, applications for naturalization, and certain other immigration applications. My.USCIS.Gov represents the future of immigration case processing for USCIS. The system will likely be used for filing of all immigration benefits in the coming years. Employers will need to verify attorney submitted registrations by entering verification codes provided by the attorney. This registration process has a potential for being a communications mess. It will be important for employers to closely monitor email accounts associated with their My.USCIS.Gov account and be prepared to login and verify registrations during the registration period running from March 1 through March 20. The authorized signatory, or person within the employer organization authorized to sign the H-1B petition, must also have access to the My.USCIS.Gov account. The authorized signatory will be responsible for verifying the attorney prepared H-1B petition through the My.USCIS.Gov account. The information currently required to make an H-1B registration is limited. No information will be asked regarding the nature of the position offered. Nevertheless, employers will need to review and analyze whether the positions offered to H-1B candidates meet the heightened definitions for specialty occupation, wage requirements and whether the H-1B candidates meet the heightened educational proof standards recently applied to the H-1B program. From screenshots made available to lawyers, the following information will be required for registration: Employer:

1. Employer’s Legal Name
2. Employer’s DBA
3. Employer FEIN
4. Primary U.S. office address
5. Legal name, title, and contact information (daytime phone number and email address) of the authorized signatory

Worker:

1. Legal Name
2. Gender
3. Date of Birth
4. Whether the worker is subject to the Master’s Cap
5. Country of Birth
6. Country of Citizenship
7. Passport Number

By submitting an H-1B registration, the authorized signatory will be certifying under penalty of perjury that the employer intends to file an H-1B on behalf of the beneficiary. USCIS has indicated that where there is a pattern and practice of abuse by employers submitting H-1B registrations, criminal penalties may be pursued pursuant to 18 USC §1001(a)(3) for making false statements and misrepresentations. USCIS will be offering a training for employers on the H-1B registration system on Thursday, February 6, 2020 at 2:00 pm EST. Register here. Pay.Gov After submitting H-1B registrations, employers will be provided receipt codes for payment of a $10 registration fee through the http://pay.gov website. Employers and attorneys should be able to enter fee codes in batch and make payment through a single transaction. The fee can be paid by entering bank account information or credit card information. Cash, money orders, or other payment types will not be accepted. The potential H-1B worker should bear no direct or indirect burden for payment of any costs associated with the H-1B process. Registration Selection Selection of H-1B registrations is should occur no later than March 31. It is expected that employers will be notified of selections between March 20 and March 31. My.USCSIS.Gov account holders will receive email or text messages indicating that an action has been added to the account. Users will need to login to the account to view the selection notification. Registrations that are not selected may be held in reserve and may be selected for H-1B processing in the event H-1B numbers are unused. At this time, there is little guidance on how this process will operate. Submission of H-1B Applications If an H-1B registration is selected, the employer will be provided no less than 90 days to submit an H-1B petition. Petitions will be submitted using the My.USCIS.Gov website. Filing fees will also be submitted through the My.USCIS.Gov website. The H-1B petitions will need to be submitted within the 90 day timeline and in some instances may need to be submitted sooner. Employers who fail to submit H-1B petitions within 90 days may be flagged for filing fraudulent H-1B registrations. Employers may need to rush to file petitions if an H-1B candidate’s period of OPT will expire soon after April 1. The H-1B petition will need to be filed so the OPT holder can obtain an H-1B receipt notice and apply for a Cap Gap OPT extension through October 1. H-1B Registrations for University Students H-1B registration requires that H-1B candidates be qualified at the time of filing the H-1B petition, not at the time of registration. This means that H-1B registrations may be filed before the beneficiary receives a degree, but that the beneficiary will have a degree at the time the H-1B petition is submitted. Suspension of Electronic Registration USCIS reserves the right to suspend the electronic registration and submission system in the event of technological issues. Given My.USCIS.Gov has had issues in the past and the system will receive hundreds of thousands of hits during the registration period, there is a possibility that the program will be suspended. Website upgrades are rapidly occurring and the site may be in good order by the registration period. Employers should prepare for H-1B filing this year as they have in the past. Before filing the H‒1B registration, employers should conduct detailed analyses on issues like whether the position offered meets the heightened standards for specialty occupation, whether the position is being offered at the correct wage level, and whether the worker has the appropriate education for the position. Second, the 90 day filing timelines allow employers to obtain prevailing wage determinations which can help ensure positions are offered at the correct wage level. Third, the FLAG system is new and has not been tested under heavy filing periods. Ensuring that the Labor Condition Application is submitted and approved early may reduce the potential delays that may arise if the FLAG system crashes. About the Author Vishal Chander is Managing Attorney of The Chander Law Firm, where he focuses on the needs of multinational companies, foreign investors, persons of extraordinary ability and other priority workers. Vishal advises companies and individuals on immigration issues related to foreign investment and expansion of operations into the United States. He is experienced in all areas of immigration practice, including employment-based immigration matters, foreign investment, complex family-based immigration, removal, naturalization and humanitarian matters. Vishal’s clients include Fortune 500 companies, technology startups, oil and gas companies, maritime organizations, athletes and entertainers, health care providers, as well as educational and research institutions. The Chander Law Firm PC 2626 Cole Ave Ste 300 Dallas, Texas 75204 (214) 677–4990 [email protected] http://www.chanderlaw.com