Ready or not, H-1B Cap Registration Season is upon us.  And things are a little different this Cap Season. That’s because USCIS formally announced via a January 9, 2020 Federal Register notice that it will change the lottery system and implement its previously proposed Electronic H-1B Registration Process.

Beginning with FY2021 H-1B cap season, rather than filing complete H-1B petitions,  the “season” will kick off with an electronic registration process for employers.  If electronic registrations exceed the H-1B cap of 65,000 and the 20,000 advanced degree exemption, USCIS will then conduct the FY2021 H-1B cap random lottery using the electronic registrations.

Of course this is the system’s first year. There are further details, and will be refinements, but here are some basic points from the announcement:

Who?  Prospective FY2021 H-1B Cap-Subject Petitioners (or their Authorized Representatives), including those eligible for the advanced degree exemption

What?  FY2021 H-1B Cap Electronic Registration

When?  March 1 – ~March 20, 2020 (Initial FY2021 H-1B Cap Electronic Registration Period—requires employer action earlier than in prior years)

  • No later than March 31, 2020 (USCIS will notify registrants with selected registrations)
  • Selection notifications will indicate the time period for filing petitions; No fewer than 90 days from the date of selection, beginning as early as April 1.

How much?  $10 Non-Refundable USCIS Registration Fee per submission (to be borne by the petitioner)

How many?  A prospective petitioner may submit one electronic submission per individual per fiscal year; no duplicates or all registrations filed by that prospective petitioner relating to that beneficiary for that fiscal year will become invalid.

Selected? Those whose registrations are selected may file an FY2021 cap-subject petition—but only for the person “named in the registration and within the filing period indicated on the eligibility notice”.

Not Selected? Registrations that aren’t selected will be kept in reserve for the remainder of the fiscal year in case USCIS needs to select more entries in order to use all 65,000 spots in the regular cap and meet the 20,000 advanced degree exemption.

If you’re a cap-subject, prospective H-1B petitioner now is the time to decide whether you want to register to sponsor any foreign national professionals to begin working for you in H-1B status as of the beginning of the 2021 fiscal year (i.e., October 1, 2020).  Data should be collected to prepare for registration as soon as possible. And as noted, USCIS will provide only a limited amount of time for lottery winners to file their petitions.  Especially during this first year with the new procedure, you should consider that certain details of the prospective petition be reviewed and finalized, etc. before or during the registration period rather than waiting for the registration results.  This is a new deadline that you don’t want to miss if you need the potential H-1B worker.

Note that continued work authorization for F-1 students through the cap-gap protection will not attach unless the registration is selected in the lottery and the petitioner files the H-1B petition. In particular, these petitions should be filed at the earliest.

For more information, please feel free to contact the undersigned or any member of our Immigration Group.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Catherine at 412-391-1334 or cwadhwani@foxrothschild.com.