The Law Offices of Robert Nadalin

Immigration Newsletter – This Year’s H-1B Cap Lottery Process


This newsletter has been prepared on behalf of clients and friends of the Law Offices of Robert Nadalin. It provides general information on recent changes in immigration and emigration related laws and should not be considered as a substitute for specific legal advice. For case specific advice, we recommend retaining legal counsel. To add or remove an e-mail address from our system, or for any other questions or comments regarding this newsletter, please e-mail: robert@nadalinlaw.com

EXECUTIVE SUMMARY

USCIS has announced that it will follow an electronic registration process for this year’s H-1B cap cycle. Unlike previous cycles, which required the preparation of a full paper petition prior to April 1, this new process should allow for a more abbreviated pre-April 1 process. In summary, it should be possible to complete the initial case qualification, status confirmation, and LCA steps prior to the cap lottery submission, but wait to prepare the full paper petition until after an H-1B lottery number is confirmed for each employee. This should provide for a significant cost savings overall without diminishing each employee’s chance to obtain an H-1B cap number.

The USCIS filing fee for the registration step is $10 per sponsored employee. The usual USCIS petition filing fee amounts would apply only after the sponsored employee receives an H-1B cap lottery number.

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ADDITIONAL BACKGROUND DETAILS

The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries to work in a specialty occupation in the U.S. Under the current law, 65,000 H-1B visas are available under the general quota, with 5400 of these visas set aside for the special H-1B1 category that is only available to citizens of Singapore, and 1400 set aside for H-1B1 applicants who are citizens of Chile. The result is that only 58,200 regular track H-1B visas are available to most H-1B applicants. An additional 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. Persons with a U.S. master’s or higher degree from a U.S. university have a better chance of receiving a number because they are allowed to participate in both the master’s and regular cap lottery. The H-1B cap lottery that will happen in the spring of 2020 will be to allocate FY (Fiscal Year) 2021 H-1B cap numbers. The soonest that these numbers can be used to support lawful H-1B work authorization will be October 1, 2020, which is the first date of the new 2021 Federal Fiscal Year.

In most years, both H-1B cap quotas are “oversubscribed,” meaning that there are more applicants than available visa numbers. When that happens, USCIS must assign the available visa numbers by way of a random chance lottery.

Under the previous system, USCIS required fully prepared H-1B petitions to be filed in the first 5 business days of April. It would then assign each petition a lottery number randomly generated by a computer, and would then run the lottery. Cases that received a lottery number would then be held for adjudication. Those that did not receive a number would be returned along with the USCIS case filing fees. Because more than half of the petitions did not receive a number, this resulted in a substantial burden on the USCIS mail room. It often took USCIS several months to return all of the petitions that did not receive a cap number.

NEW USCIS E-REGISTRATION LOTTERY SYSTEM

In the hope of having a more efficient process, USCIS issued a new H-1B cap lottery regulation in March of 2019. This new regulation can be found at: 8 CFR § 213.2(h)(8)(ii). This regulation proposes a new way to assign the H-1B cap lottery numbers before petitioners prepare and file a fully prepared paper petition. Even though the initial registration process will be electronic, the final petition supporting H-1B status for persons who win a lottery number is still required to be submitted on paper. This new rule only applies to H-1B cap employee beneficiaries. It does not apply to extension or change of employer petitions because those employees will already have an H-1B number that can be extended or ported to a new employer.

USCIS will accept registrations between Sunday, March 1, and Friday, March 20, of 2020. The immigration attorney will file this registration on behalf of employees who the Company chooses to sponsor for the H-1B process. Only one registration per employee is permitted for a single employer.

USCIS CANCELLATION OF REGISTRATIONS FOR EMPLOYEES WITH MULTIPLE REGISTATION REQUESTS FROM THE SAME EMPLOYER

Employees may have more than one sponsoring employer, as long as the lottery registration submissions are supported by a bona fide job opportunity. H-1B lottery registrations are not transferrable between employers.

Although it remains to be seen as to how aggressively USCIS will follow up, the agency has indicated that it will monitor the registration system in an effort to deter frivolous and fraudulent filings by employers and employees who attempt to game the system by filing registrations not connected to bona fide job opportunities. One indicator of a potential problem may be the number of registrations submitted by a particular Company or in support of a specific beneficiary that are not followed up by a paper petition filing along with the full petition filing fee amounts.

If a duplicate registration is filed for a beneficiary in connection with the same sponsoring employer, USCIS will void all of the registrations for that employee. For this reason, it is of the highest important that managers, employees, and any other persons who may want to “be helpful” be warned NOT to attempt to submit a registration for the employee. This is a significant concern because it appears that USCIS has not implemented many of the strict measures of the type that the U.S. Department of Labor uses to prevent unauthorized PERM or LCA filings.

FILING WINDOW OF 90 DAYS AFTER CAP NUMBER RECEIVED

After an employee is assigned an H-1B cap lottery number, a full completed petition and supporting LCA application confirming the H-1B salary number must be submitted within the period indicated on the selection notice received from USCIS, which should allow a period of at least 90 days to finalize and file the petition.

ADDITIONAL CONSIDERATIONS

Please keep in mind that even though USCIS has announced that it intends to follow the electronic registration process, it can later pivot back to the old process as long as that change is made at least 30 days prior to April 1, 2020. This is another reason why it may be important to move sooner in having a certified LCA in place as soon as possible.

In the Spring of 2019 there was much uncertainty about whether or not USCIS would apply the electronic registration process to the H-1B cap cases, which made it prudent to prepare fully documented petitions under the traditional paper filing process. This year, USCIS has provided a greater level of transparency and notice about the FY 2021 H-1B cap lottery. Beyond its public press releases, USCIS has also been more communicative through attorney and stakeholder liaison channels. This has led to more confidence in the proposed e-registration process, warranting a re-consideration of pre-filing strategies.

Although USCIS has proposed requiring only minimal information through its cap lottery intake procedure, the employer is required to attest to having a bona fide H-1B specialty occupation position available to the sponsored foreign worker.

Applications submitted at the beginning of the 90-day period will be adjudicated first. In previous years the RFE (request for additional evidence) rate for petitions was much lighter for petitions adjudicated early in the summer but very heavy for petitions adjudicated in the later part of the summer or fall.

In addition, important OPT cap-gap planning is required to minimize interruptions in work authorization between April 1 and October 1. Careful contingency planning for cap-gap cases is needed as registration applications will not result in cap-gap benefits unless they are selected. Employers must review all cases thoroughly prior to the beginning of the registration period to ensure that cap-gap cases are timely filed once the petition filing window opens. Employers should identify employees who will need H-1B cap sponsorship as soon as possible and preferably before the end of January of 2020.

The Law Offices of Robert Nadalin

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