A Change in the H-1B Specialty Occupation Program
On December 9, 2019, a final rule that establishes a new electronic registration system for petitions for new H-1B nonimmigrant workers went into effect. The rule is set to cover petitions received for the upcoming FY-2021 H-1B cap season in April 2020. The electronic system will require petitioning/sponsoring employers to pre-register potential new H-1B candidates before proceeding to file a completed petition with USCIS. For each applicant, employers will be required to pay a $10 fee. After this initial open registration period, USCIS will then run the “H-1B lottery” on properly registered H-1B applicants. Those selected at this stage will then be able to proceed to the full filing for adjudication at a USCIS service center.
Note: This registration process is not required for any cap-exempt petition. This includes extensions, qualifying petitions filed by cap-exempt employers, or petitions for cap-exempt foreign nationals.
Instructions for employers
1. Planning
Begin assembling lists of possible H-1B beneficiaries and contact qualified immigration representation by January 31, 2020. By that time, for each applicant, it is advised to submit at least the following to attorneys:
- The job description for the proffered position to H-1B candidates;
- Documents showing that the H-1B candidate is qualified for the position as described and has at least a bachelor’s degree or foreign equivalent;
- Worksite location(s);
- Compensation, benefits, and other terms of employment; and
- Documents concerning the candidate’s immigration history (I-20, EAD, I-797, etc.).
2. Complete Registration
DHS has indicated that registration will take place on the myUSCIS portal at my.uscis.gov. Employers will need to create accounts using this platform. USCIS has also indicated that training material will be released before the registration period begins, though there is no published material on the process as of this publication. The initial registration period will be from March 1 to March 20 of 2020. When the time comes to register, the following is a list of required information for each H-1B applicant:
- Full name
- Date of birth
- Country of birth
- Country of citizenship
- Passport number
- Gender
- Employer attestation of bona fide job offer and intention to file an H-1B petition if the applicant is selected
Due in part to the attestation requirement, it is crucial that the job offer and employment details are fully reviewed for H-1B eligibility prior to submitting the registration. At some point after the registration period, USCIS will randomly select registrations. This will serve as the cap selection process and will happen at some point after March 20th when the registration period closes. USCIS has not yet given guidance once when the selection process will take place, but it is likely it will be concluded by April 1.
3. Pay for the Registration
USCIS has indicated it will be using Pay.gov to process payments for registrations. Employers will be able to pay for their registrations by credit/debit card or though direct bank account transfers (ACH). The fee for each registration is $10. This will not require an account with pay.gov and registrations may also be paid for in bulk.
4. File the Labor Condition Application
In addition to the H-1B registration, a certified Labor Condition Application (LCA) will still be required for each H-1B petition. The LCA is a document that contains attestations that the employer will follow Department of Labor (DOL) regulations concerning H-1B workers and that they will be paid at least the prevailing wage for their occupation and area. The DOL, which must certify an LCA before it can be used, also requires that U.S workers are notified that an H-1B worker is being sought and that the LCA, as well as other related documentation, are made available to the public. These regulations apply even if an LCA is not used for an H-1B petition.
It is possible to submit LCAs before the selection process, though given the timeline, it seems likely that LCAs will only be necessary for registrations chosen in the lottery. If this is the case, significant effort can be saved. Given the complexity of the LCA process, professional guidance is recommended.
5. File the completed H-1B Petition
Once a registration is chosen, petitioners will have 90 days to file petitions. Because the cap selection process will have already taken place, petitioners will need not rush to file petitions on April 1st as had been done in the past. Nonetheless, they should be filed as soon as possible to ensure the selected candidate may begin work on October 1st, 2020, allowing time for the employer to respond to potential requests for additional evidence by USCIS or other issues.
Getting the right Support
Now more than ever, it is crucial for those seeking foreign talent to retain experienced immigration attorneys that can support them through this new registration process. Our offices are ready to support petitioners in this new stage of the H-1B program. With over 50 years of combined legal experience, we can offer employers guidance in an uncertain environment.