2021 H-1B Cap Lottery Process – Update

USCIS Provides Important Details on the Process for the Upcoming Electronic H-1B Registration Process

By Grant W. Godfrey and Donald W. Parker

Grant Godfrey Immigration Attorney Boston photo Donald Parker - Immigration AttorneyIn January 2020, we wrote a post discussing the new H-1B lottery process this year, which will require that employers utilize an electronic registration system for foreign employees (called beneficiaries) that the company would like to sponsor. It provided background on the H-1B cap process in general, detailed how the previous system worked, and described what we knew at that time of how the new system would work.

USCIS has now provided important details on how this new system will work which are discussed in detail in this article.

How the Electronic H-1B Registration System Will Work

The new electronic registration system requires that attorneys create an account on the myUSCIS website. During the H-1B Registration period, which runs from 12PM eastern time on March 1, 2020 to 12PM eastern time on March 20, 2020, the attorney will be able to create an H-1B Registration Application profile for an employer client and then, within that Application, attach individual foreign workers that the employer seeks to sponsor for an H-1B visa in the lottery this year. Attorneys can combine up to 250 foreign workers for one employer on a single Application.

After the attorney has completed the employer profile and created one or more H-1B Registrations, the H-1B lottery system will have them draft an electronic Form G-28, which is the form that the Department of Homeland Security uses to confirm that the company has agreed to have the attorney represent it. Once the H-1B Registration Application and the electronic Form G-28 are completed by the attorney, they will have to be reviewed and approved for submission by the employer. Specifically, the H-1B lottery system will generate an employer-specific code that the attorney will need to send to the employer so that the employer can complete its own review.

In order to conduct this review of an employer’s H-1B Registration, an authorized representative of the employer will need to create their own H-1B account on the myUSCIS website – note that employers will not be able to create their own accounts until February 24, 2020. If the company already has a myUSCIS petitioner account, they will need to create a second account specifically for H-1B registrations as the old account will not have the needed functionality to complete the review process.

Note that a company can create more than one account if there will be more than one person at the organization reviewing and approving the H-1B Registration. Each H-1B Registration account is limited to one entity, so employers that will have several different entities acting as H-1B sponsors/employers will need to create separate H-1B accounts for each employing entity. Moreover, an email address can only be associated one account – accordingly, in a situation where there will be multiple employing entities each utilizing a separate H-1B account, either different company representatives must set up each account under their own separate email, or multiple email addresses will have to be created for a single company representative to use with each separate account.

The Company Review Process for the H-1B Registration System

After the company has set up its H-1B account and after the attorney has created the employer’s H-1B Registration Application, the company representative will log into their account and enter the special code sent to them by their attorney. This will allow them to access the electronic Form G-28 and the H-1B Registration Application (including the separate entries for each sponsored employee) that the attorney has created for them.

The company representative will first review the attorney’s Form G-28 and, assuming that the information on the Form is correct, consent to the release of information to the attorney, confirm that they have reviewed the Form G-28, and accept the Form by typing their name. The company representative will then be taken to the company information page and the separate entries for each sponsored employee. As with the Form G-28, the company representative must accept this information as accurate. Note that in the event that the company representative has questions about or corrections to any of this information, they can reject it and the attorney can then make any required changes to the Form G-28 and the H-1B Registration Application. Note also that the attorney will not receive automatic notification that the Form G-28 and H-1B Registration Application have been accepted or rejected, so the company representative will need to tell the attorney that it has completed review, especially if the they have rejected some portion of the Application.

Once the G-28 and H-1B Registration Application have been accepted by the company, the attorney will then be able to pay the nonrefundable $10 registration fee for each foreign worker that is included on the Application. Payment of the fee (which is done by credit card or bank transfer) automatically causes the H-1B Registrations to be submitted. On both the attorney’s and the company’s account, each foreign worker listed on the H-1B Registration Application will be designed as “Submitted” which means that the foreign worker is in the queue for the lottery. Note that if the attorney or the company determines prior to March 20th that there was an error in an H-1B Registration, the attorney can delete the foreign worker from the H-1B Registration and submit a new corrected one.

At 12PM Eastern Time on March 20, 2020 the H-1B Registration period will close, and the attorney and company will no longer be able to submit or pay for applications, so the company and attorney should double check that all beneficiaries have a “Submitted” status before then to ensure that the beneficiary is included in the lottery.

Sometime between when the H-1B Registration period ends and March 31, 2020, the U.S. Citizenship and Immigration Services (USCIS) will conduct the lotteries in the manner described in ourJanuary 2020 post. Any foreign worker who is selected in the lottery will have their status updated from “Submitted” to “Selected” and the company and attorney will have 90 days to prepare and submit a paper-based H-1B filing to USCIS. Any foreign worker who is not selected in the lottery will remain in “Submitted” status and will be eligible for subsequent lotteries conducted against the Fiscal Year 2021 H-1B cap if, for example, USCIS rejects or denies enough H-1B filings that it is unable to issue all of the 78,200 cap-subject H-1B visas that Congress has allocated for each fiscal year. Once the 2021 fiscal year ends, i.e. on September 31, 2021, all beneficiaries that are in “Submitted” status will be removed from the system.

Please let us know if you have any questions about submitting an H-1B lottery registration this year. Call Parker Gallini immigration attorneys at (781) 810-8990.

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Posted in Immigration Law

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