On January 31, 2019 the U.S. Department of Homeland Security published a final rule to amend the regulations governing the existing H-1B cap lottery process. The rule established an electronic registration system, which must be used prior to filing a new H-1B cap petition. On December 6, 2019, the U.S. Citizenship and Immigration Services (“USCIS”) announced that it will implement the registration process in the next H-1B lottery. This system requires employers to first electronically register and pay the associated H-1B registration fee, wait for the lottery selection to occur, and then file the complete H-1B petition with USCIS.

Overview of H-1B Cap and the Prior H-1B System

Per statute, the number of new H-1B visas each year is capped at 65,000, with an additional 20,000 visas reserved for beneficiaries who have a U.S. master’s or more advanced degree. Over the past several years, the number of petitions filed has greatly exceeded the number of visas available – generally more than 200,000 petitions are filed every year. As a result, the USCIS has conducted a lottery to determine which cases would be accepted for processing.

The H-1B cap system in prior years required employers to submit a complete H-1B petition for selection in the lottery. These petitions were accepted within the first five business days of April. After the fifth day, USCIS would conduct the lottery and notify the selected individuals. Those who were not selected in the lottery would have their petition returned along with a rejection notice.

New Registration System

Below is a step-by-step overview of the new registration system, along with the proposed timing of the lottery.

  1. Under the new registration system, employers must first pre-register with the USCIS in order to participate in the H-1B lottery. Representatives and attorneys may begin creating myUSCIS H-1B Registration Accounts on February 18. Employers may begin creating accounts on myUSCIS beginning February 24.
  2. The window to submit a registration with USCIS will run from March 1 to March 20. The cost to submit each registration application is a $10 non-refundable fee (per beneficiary).
  3. Assuming there are more registration submissions than available cap numbers, USCIS will conduct a computer-generated lottery. Similar to last year, the U.S. Master’s cap lottery will be conducted first, followed by the regular cap lottery. USCIS has announced that they will make their selections by March 31. Employers and their authorized agents or attorneys may log in to the USCIS registration system to determine which registrations have been selected. USCIS has also stated they will notify registrants once they are selected in the lottery.
  4. After receiving notice of selection in the lottery, employers have 90 days to file a full H-1B petition. As of now, USCIS has indicated that filing will begin April 1. Each registrant that is selected will have a specific filing period indicated on their notice.

Potential Concerns and Unknowns

As with any new change from USCIS, potential concerns and unknowns arise. Below are potential issues we anticipate seeing:

  1. The registration system: The final registration system has not been made available. In past years, USCIS has tested this system and encountered technical difficulties. There are concerns that these technical difficulties will arise again, especially once the system is live.  Additionally, there is always a possibility that USCIS may suspend the new registration system and revert back to the prior H-1B lottery system. USCIS has not indicated how much advance notice they will provide, should they decide to forego the new registration system.
  2. Travel: Beneficiaries who anticipate traveling between March 1 and October 1 should notify their employers and attorneys, as the timing of travel may impact the overall case strategy.
  3. Cap-Gap and Employment Authorization: In prior years, beneficiaries with OPT or STEM OPT, with an employment authorization document (EAD) that expires between April 1 and September 30, continue to have work authorization between the time of filing the petition and the anticipated start date of October 1. At this time, we believe that this cap-gap policy will continue with the new registration system; therefore, those who have valid employment authorization documents with expiration dates between April 1, 2020 and September 30, 2020 will qualify for cap-gap. Individuals who are not selected in the lottery will lose employment authorization on the date their EAD expires.

On-Going Updates

Additional updates regarding this new system are expected from USCIS. The attorneys at Chin & Curtis will continue to stay up-to-date with the ongoing changes from USCIS and we will provide additional information once we receive it.

Written by Shannon Lee; February 11, 2020