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Do I have to register to file an H-1B Cap Petition?

You might be wondering, do I have to register to file an H1B Cap Petition? U.S. Citizenship and Immigration Services recently announced a new program that will require employers to register to file H-1B cap petitions for prospective employees. The new procedure, which has not yet been implemented, is intended to make the H-1B cap petition filing process easier and more manageable for employers and for UCSIS adjudicators.

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The H-1B visa is a temporary visa for foreign workers who are offered employment in a position requiring a degree or its equivalent.

For most employers, the process of petitioning for an H-1B worker involves filing during the first five business days in April and hoping to be selected to be one of the petitions counted in the annual H-1B cap. There are 65,000 H-1B visas available for people with a bachelor’s degree or the equivalent (called the “regular cap”), and there are 20,000 H-1B visas available for applicants who have a master’s degree or higher from a United States university (called the “master’s cap”).

Each year, after an employer files an H-1B petition for a foreign employee, the employer then waits to find out if the petition is selected in the annual H-1B lottery.  You might also be interested in reading more about employment based immigration and temporary worker visas.

The Current H-1B Cap System

  • Employers file fully-prepared H-1B cases within the first five business days of April (during the “H-1B filing period”).
  • If the cap is met within the first five days, U.S. Citizenship and Immigration Services (USCIS) closes the annual filing period. If not, USCIS continues to receive petitions until the cap is met.
  • When the H-1B filing period closes, USCIS completes data entry for each case it has received. Then it conducts a two-part lottery. During the first part of the lottery, USCIS runs a random selection of master’s cap petitions to reach the 20,000 advanced degree exemption. Then, USCIS randomly selects petitions from the remaining pool of H-1B petitions to reach the 65,000 regular cap.
  • Petitions selected in the lottery are processed over the next few months. Those not selected are returned along with filing fees. Petitions selected for the cap may be approved or denied.
  • The earliest date that the employee may begin working in H-1B status is October 1st (the beginning of the fiscal year).

USCIS’s Proposed New Employer Registration System for H-1B Cap Petitions

  1. Employers electronically register each potential H-1B employee by providing USCIS with basic information about the prospective H-1B employee and the offered position through a USCIS website. At this time, we are still waiting for specific instructions on what information will be required. Petitioning employers may not submit more than one registration for the same beneficiary during the same fiscal year. The registration period will begin at least 14 calendar days before the first day of filing in each fiscal year. Only petitions where the requested start date is the first business day of the fiscal year may be submitted during the initial registration period. The date of registration may be no more than 6 months before the requested start date.

USCIS has not proposed a fee for registration at this time.

  1. If the number of registrations received during initial registration is fewer than the projected number of petitions needed to reach the regular cap, USCIS will continue to accept registrations until it determines that it has enough registrations to reach the regular cap.
  2. Upon the close of the initial registration period, USCIS conducts the two-part lottery among the registered petitions in reversed order: random selection among all registrations for the 65,000 regular cap will be conducted first, followed by the random selection of 20,000 registrations for the advanced degree exemption. If there are fewer registrations than needed to reach the projected number needed to meet the advanced degree exemption, USCIS will announce a final registration date and continue to accept registrations for the advance degree exemption before that date. Random selection would then be made among the registrations submitted during the final registration period. USCIS will hold in reserve registrations which are not selected to pull from in the event that selected registrants do not file petitions or more registrations need to be added to the selected pool.
  3. USCIS notifies employers that their registered petition has been selected and designates a filing period of at least 60 days. According to the proposed rule, allowing USCIS to specify the filing period in the selection notice would allow it to stagger filings and provide filing period of longer than 60 days if necessary to accommodate processing backlogs and other operational needs. Petitions filed before or after the designated filing period will be rejected or denied.

When does the New Employer Registration System for H-1B Cap Petitions Go Into Effect?

USCIS has indicated it would like to implement the electronic registration system in advance of April 1st 2019. We don’t know if that will actually happen – USCIS published its proposed rule about this new system in December 2019, and  the 30-day notice and comment period ended January 2nd, 2019. USCIS now has to review the comments and publish its final version of the rule addressing concerns raised by the public. Once the rule is finalized, the government can then designate a date for it to go into effect.

In its notice about the proposed new rule for employer registration, USCIS acknowledged that it might not be possible to implement the electronic registration process by April 1, 2019. If that happens, employers may still be filing their H-1B cap petitions the same way they have in previous years.

Importantly, the proposal to change the advanced degree selection process is a separate proposed rule from the electronic registration process rule. This means that the changes to the advanced degree H-1B cap selection process are likely to be implemented during the April 2019 H-1B cap season regardless of whether the employer electronic registration system is implemented at that time.

Do I have to register to file an H-1B Cap Petition?

We don’t know for sure if the new employer registration system for H-1B cap petitions will be in place by April 1, 2019. Since we are not sure what will happen, employers seeking to file H-1B cap petitions need to be prepared to file their petitions as they have in previous years or to get ready to register using a new system if it is implemented. If you’re interested in finding out if you can file an H-1B cap petition, contact an experienced immigration lawyer. 

Contact Houston Immigration Lawyer, Kathryn N. Karam, P.C. and her team here:

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