USCIS Announces Upcoming H-1B Lottery Will Be Done Under the New Electronic Registration System — But Much Remains Unclear
By Donald W. Parker, Immigration Lawyer
Background on The New Law
On January 31, 2019, the US Department of Homeland Security published a final regulation that establishes an electronic registration system to be used for the selection of new H-1B visa petitions under the existing H-1B Cap Lottery process. On December 6, 2019, the USCIS announced that it is requiring that the electronic registration system be used for the 2021 H-1B Cap Lottery process that will ultimately dictate who may file a petition for a cap-subject H-1B visa on or after April 1, 2020. This Article describes the information that we have about this significant change in process as well as questions that still need to be answered. Note that the USCIS has also indicated that it will be issuing additional guidance in this process in the next several weeks. We will up-date you on the guidance once it is published.
By statute, the number of new H-1B visas that can be issued by the USCIS during a fiscal year (beginning on October 1st) is capped at 85,000 (the “H-1B Cap”). Cap-subject H-1B visas are given out each year in two primary tranches – 20,000 visas reserved for foreign nationals with a U.S.-earned Master’s (or higher) degree (the “U.S. Master’s Degree Tranche”) – and an additional 58,200 visas reserved for all foreign nationals who otherwise qualify for H-1B classification (the “Regular Tranche”). The USCIS also reserves 6,800 visas for citizens of Singapore (5,400) and Chile (1,400) for H-1B1 visas. Each year for the past several years, many more H-1B visa petitions have been filed under the H-1B Cap than the number of H-1B visas available in both the U.S. Master’s Degree Tranche and the Regular Tranche, and as a result, the USCIS has selected cases that may be processed for an H-1B through a lottery selection process. Note that H-1B1 visas have historically been under-utilized and remain available throughout the fiscal year.
How the Previous System Worked
The H-1B Cap Lottery system in effect in prior years required employers to submit a complete H-1B visa petition filing package to the USCIS for each foreign national that they were sponsoring during the first 5 business days of April of each year. After 5 business days, the USCIS would stop accepting cap-subject H-1B petitions and conduct the two H-1B Cap lotteries. Those selected in the H-1B Cap lotteries would be issued Receipt Notices and their cases would be adjudicated by the USCIS over the course of the next 6 months. Those whose petitions were not selected in the lotteries would eventually receive a rejection package containing the return of their petition, filing fee checks and a notice that they were not selected in the lottery.
How the New System Will Work
The new electronic registration process will change the H-1B Cap Lottery system in the following ways:
- Beginning on March 1, 2020 and ending on March 20, 2020, employers will need to register their intended sponsorship of cap-subject H-1B workers with the USCIS through an online registration portal. At the end of the registration period, the USCIS will use a computer-generated lottery to select sufficient registrations for the 58,200 Regular Tranche visas. This lottery will include registrations on behalf of foreign nationals who have a U.S.-earned Master’s or higher degree and all other qualifying foreign nationals. The USCIS will then run a second computer-generated selection process for all U.S.-earned Master’s Cap applicants who weren’t selected in the first lottery to select sufficient registrations for the 20,000 U.S. Master’s Degree Tranche visas.
- Shortly after the registration process closes on March 20th, USCIS will notify employers and their attorneys of selected registrations, and the employer will then have 90 days to file the actual H-1B visa petition with the USCIS.
- The employer (or their attorney) must pay a registration fee of $10 for each registration either by credit card or bank transfer.
- Registrations will be submitted by the employer’s attorney through the attorney’s myUSCIS on-line portal. The attorney will have to up-load, as part of the registration process, a Form G-28, Notice of Entry of Appearance as Attorney for each registration or a group of registrations.
- While we don’t yet have a final list of the information required to register a case, the USCIS has previously stated that it will include the following: (1) the employer’s name, address, and EIN, (2) the employer’s authorized representative’s name, job title, telephone, and email, (3) the foreign national’s name, date of birth, country of birth, country of citizenship, gender, and passport number and (4) whether the foreign national has obtained a U.S.-earned Master’s (or higher) degree.
- Once submitted, a registration cannot be amended. If changes to the registration need to be made, the registration will have to be deleted and a new registration resubmitted, provided that it is resubmitted between March 1st and March 20th. As in the past, only a single case or registration can be filed by an employer for an individual and if more than one is filed, all of them will be denied.
- USCIS will not require that employers obtain a certified Labor Condition Application (“LCA”) with the Department of Labor prior to submitting the electronic registration.
Uncertainties and Unanswered Questions
At this stage in the process, a number of unanswered questions remain about this process including the following:
- Will the electronic registration system work? If it crashes, what will happen then? The track record of the USCIS rolling out effective electronic systems is spotty at best. The USCIS has indicated that if it finds problems in the system – arguably even after it has been launched – it can suspend the process and return to the traditional process involving the filing by employers of full H-1B cases prior to a certain date. If this were to happen, would the USCIS stick to a filing window of the first 5 business days or April or move the date back?
- Because of uncertainty around these issues and because even if the electronic registration system works, it will mean that 78,000+ cases will have to be prepared and filed within a 90-day period, we are recommending that employers plan on obtaining a certified Labor Condition Application and any required education or experience-based credential evaluations prior to registration. These two items potentially are subject to significant delays given the high volume of cases and we think it would make sense to have them done in advance even for cases that may not be accepted in the lottery.
- How exactly will the creation of an electronic registration work? Ideally, we would like to complete draft registrations prior to March 1st for review by both us and by our clients to ensure that they are accurate and complete, and we don’t know whether that will be possible. In addition, if registrations can be prepared in draft form in advance, how can they be shared with the employer?
- How will attorneys up-load their Forms G-28, Notice of Entry of Appearance as Attorney into the electronic registration system? While the USCIS says that we can aggregate multiple registrations under a single Form G-28, there is a question at this stage as to what happens if, after completing the registration, a change has to be made to one of the cases – will that mean that all registrations tied to that Form G-28 will also have to be deleted and resubmitted? As a result, our intention at this point is to have each registration tied to its own individual Form G-28. This of course places greater emphasis on how the Form G-28 up-load process will work.
- What happens if there are glitches in the registration system? One common glitch we have seen over the years in a system that the USCIS operates for the electronic submission of certain types of applications is that after completing and submitting the application, the fee payment system crashes or otherwise won’t work. Will the USCIS provide a meaningful and practical way to address these types of situations when and if they occur?
Stay Tuned and Get Ready
Time will tell whether the new H-1B Cap electronic registration system operates as expected and eases the process of participating in the H-1B Cap lottery process or simply complicates an already complex and time-consuming process. We will let you know as additional information is provided by the USCIS on this new system. In addition, this year, more than in the past, we strongly recommend that you begin working with your Immigration legal counsel as soon as possible after the new year to identify possible H-1B cases and begin the process of preparing them for registration in the H-1B Cap lottery.