Background: On December 6, 2019, USCIS announced that it will implement a requirement that employers seeking to file H-1B cap-subject petitions for fiscal year (FY) 2021, including those eligible for the advanced degree exemption, must first electronically register to determine if they may file an H-1B cap-subject petition. On December 17, 2019, the American Immigration Lawyers Association (AILA) published a Practice Pointer to address some of the most frequently asked questions regarding the electronic H-1B registration process (hereinafter referred as “E-Registration”) based on information that is available to date. We use the following Q&A to summarize the key takeaways of this Practice Pointer.
Q: Is there any fee for the E-Registration?
A: There is a non-refundable $10 registration fee for each beneficiary. The petitioning employer is responsible for submitting such fee. The fee will be paid through USCIS’ online payment portal by credit card or debit card.
Q: When can employers submit the E-Registrations?
A: The online registration system will be open on March 1, 2019 and remain open until March 20, 2020. During the registration period, users can reenter the system and edit registration before it has been submitted. After submission, users may not edit the submission, but will be allowed to delete and resubmit a new registration before the E-Registration system close.
Q: Where can employers submit the E-Registration?
A: AILA anticipates that USCIS will use the myUSCIS online portal to house the electronic H-1B registration process.
Q: What information will be needed for the E-Registration?
A: 1) Basic information about the employer, including the name, EIN number, primary US office address and contact information of the authorized signatory of the employer; 2) Basic information about the beneficiary, including the name, gender, education (whether the beneficiary has master’s degree), date of birth, country of birth, country of citizenship and passport number of the beneficiary.
Information regarding the offered position is not required.
Q: Can attorney or law firm submit the electronic registration on behalf of petitioner?
A: Yes. Attorneys may submit registration on behalf of clients.
Q: Once selected, when should the employer submit a complete H1B petition?
A: The employer will have at least 90 days from the date of a registration selection to submit a complete H-1B petition to USCIS.
Q: If a beneficiary is selected in the lottery, must the employer submit the complete H1B?
A: In the preamble to the H-1B registration final rule, DHS notes that cases that demostrate a pattern and practice of potential abuse of the registration system will involve a case-by-case review of the facts involved, including any mitigating facts or circumstance. It further notes that registrants that have been found to engage in pattern and practice of submitting registrations for which they do not file a petition following selection could be subject to monetary fines or criminal penalties for making false statements an misrepresentations to the government. Therefore, it is important to consult an attorney and make the decision before submitting the E-registration.
Q: How will the new rule affect F-1 student’s cap-gap protection?
A: Before the new E-Registration rule, an F-1 student who is the beneficiary of an H-1B petition that is timely filed and request for change of status may have his or her F-1 status and any current employment authorization extended and continue through September 30, or until the H-1B petition is denied, withdrawn, revoked, rejected or is not selected. After the implementation of the new E-Registration rule, only selected beneficiary can be the beneficiary of an H-1B petition. Therefore, only those individuals selected through the H-1B registration process will be eligible for cap-gap protection.
Q: What should aspirant H-1B applicants do now?
A: F-1 students who are completing their programs should apply for OPT immediately upon entering into the 90 period before their I-20 expires. In addition, F-1 students should secure job offers from employers before March 1, 2020 so that their employers’ attorneys can register on their behalf during the 20-day period on and after March 1, 2020.