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February 24, 2020

Gearing up for the H-1B Cap FY2021 Registration–Steps to Create and Manage an Employer Registration Account

On December 6, 2019, the U.S. Citizenship and Immigration Services (USCIS) announced that it will be implementing the online registration process for the upcoming FY2021 H-1B Cap season. Employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee.

In order to sponsor H-1B workers for employment in FY2021, the U.S. Petitioner will need to set up an online “H-1B Registrant” account at MyUSCIS.  This is required even if an immigration counsel has been retained to draft and submit registrations on the employer’s behalf. 

Employers will be allowed to create “H-1B Registrant” accounts starting February 24, 2020.  The system will allow account creation for the FY 2021 cap season throughout the entire registration period, until noon EST on March 20, 2020. 

The H-1B Registrant account can be used by the U.S. Petitionerto register a prospective H-1B employee directly. Alternatively, the employer can register prospective H-1B employees through their attorney or accredited representative.  If working with an attorney, electronic “handshake” is required to link the attorney’s and employer’s accounts with the use of a code that is generated once the attorney creates the records. The employer then must review and approve the H-1B beneficiaries’ information and attest to its accuracy and that a petition will be filed for the beneficiary, even if it is subject to lottery and is eventually selected.

Creating an Account on MyUSCIS

Beginning February 24, 2020, H-1B U.S. Petitioners must create a new account specifically designed for the H-1B cap by visiting  https://myaccount.uscis.gov/users/sign_up and selecting the “I am an H-1B registrant” option. To ensure a smooth registration process, petitioning companies are strongly encouraged to set up their registrant accounts between February 24 and February 28. The steps to be followed in order to create the account are set out below:

• Create an email account by using a unique email address and a password.
• Select preferred method for two-factor authentication which include SMS text messaging, an email address or the use of an authentication app. 
• Provide answers to security questions, which will allow you to reset your password at any time. It is advisable to save these questions to responses for future use.
• Select your account type, as “I am an H-1B Registrant.”
• Carefully read the H-1B Registration information provided and proceed with filing registrations for eachbeneficiary.

Authorized Representative

The U.S. Petitioners account(s) must be managed by an employee authorized to make immigration requests on behalf of the company.  Each account must have a unique email address associated with the account.

TheH-1B Registrant account should preferably be created and used by the authorized individual who typically signs the USCIS petitions on behalf of the U.S. Petitioner. Where a U.S. employer designates more than one authorized signatory in the H-1B registration process, each signatory must create their own H-1B registration account. An authorized signatory may hold several accounts, e.g., if they will act as the authorized signatory for multiple entities, but in that case, they must create a separate account for each entity, using a unique e-mail address for each account.

If the U.S. Petitioner has multiple EIN entities, they will need to set up an account for each entity that will sponsor H-1B workers. Each U.S. Petitioner’s account(s) must be managed by an authorized representative to make immigration requests on behalf of the organization. Each authorized representative must have a unique email address associated with the account.Different email addresses will be required to set up multiple registration accounts.

The Registration Timeline

The USCIS will begin the cap registration period on Sunday, March 1, 2020 at noon EST. U.S. Petitioners and/or immigration counsels can begin to draft and submit cap registrations at this time. Drafting or filing of registrations will not be permitted prior to March 1, 2020. 

All registrations for the FY 2021 cap must be submitted before theregistration period closes on March 20, 2020 at noon EST. Late registrations will not be accepted.

More on the Online Registration Process and Requirements

The followinginformation will be required for each Beneficiary to be registered: 

• Beneficiary’s legal name as per Passport;
• Gender;
• Date of birth;
• Country of birth;
• Country of citizenship;
• Passport number, if any; and
• Whether the beneficiary is eligible for the U.S. advanced-degree cap or will be eligible for the advanced-degree cap at the time a petition is filed on the beneficiary’s behalf.

Only one registration per H-1B beneficiary will be allowed; if an entity files more than one registration for a beneficiary, each of those registrations will be cancelled and the employer will not be permitted to re-submit a registration for that beneficiary in FY 2021. Multiple related entities can each submit a registration for a specific beneficiary, but only if each entity can show a legitimate business need to file a registration for that beneficiary. Multiple registrations for a single Beneficiary will be closely scrutinizedby the USCIS to ensure there are no duplications before it runs the cap lottery.

There is no limit to the number of registrations the U.S. Petitionermay submit. Each registration, however, will be limited to a batch of 250 beneficiaries. 

TheU.S. Petitionermust have a legitimate business need to register each foreign national and must have a bona fide intent to submit an H-1B cap petition for each such beneficiary who gets selected in the cap lottery. 

Adding and Deleting Beneficiaries

Beneficiaries can be added to or deleted at any time when the registration is in draft format. 

After a registration has been submitted to the USCIS, the system will allow to delete a beneficiary until the registration period closes at noon ET on March 20, 2020. However, if the U.S. Petitioner wants to add beneficiaries, it will need to create a new registration before the registration period closes as the system will not allow new beneficiaries to be added to a registration that has already been submitted to the USCIS.

Involvement of Immigration Counsel

The U.S.Petitioner’s immigration counsel cannot submit an H-1B registration until it has been approved and electronically signed and a Form G-28, Notice of Entry of Appearance as Attorney has been executed. Failure to approveand electronically sign the G-28 and registration in time for submission by March 20 at noon EST will disqualify the listed beneficiaries from being entered in this year’s cap lottery. 

Each time the immigration counsel completes drafting a registration for the given U.S. Petitioner, the USCIS will generate a unique passcode that can be used to review, approve and electronically sign the G-28 and registration document. The immigration counsel will send this passcode to the U.S. Petitioner’s authorized representative. 

When the authorized representativeis ready to review the draft registration, he/she must log into their respective my.USCIS.govaccount, which will open the H-1B Registrations Home Page. Click on “Enter representative passcode” and input the passcode in the field provided. 

The authorized representativewill initially be directed to review the electronic Form G-28, which will require him/her to confirmthe attorney representative, check the appropriate boxes to inform the USCIS where notices related to the case will be sent, attest to a statement confirming that the U.S. Petitioneris represented by the attorney listed on the G-28, and provide electronic signature. Once this is reviewed, the authorized representativemust then click on “submit” to file the G-28.

Once Form G-28 is submitted, the authorized representativewill be directed to the draft registration. Here, he/she must confirm that the information about the U.S. Petitionerand the beneficiaries is accurate. If corrections need to be made, he/she should decline the registration, which will revert the draft registration back to the immigration counsel for corrections. The authorized representativemust inform the immigration counsel of the errors. The immigration counsel will make the requested correction, generate a new passcode, and return the registration to the authorized representativefor review, approval and electronic signature. 

Where the information is accurate, the authorized representativemust accept the registration which will direct him/her to the electronic signature pages. Upon signing, the authorized representativemust click “Finish and Send,” which will return the registration to the immigration counsel for submission.

Tracking Status of Registrations and Obtaining List of Beneficiaries

The authorized representativewill be able to track the progress of a registration which has accessed through a passcode provided by the immigration counsel. This will allowthe authorized representativeto check whether the case remains in progress or whether it has been submitted to the USCIS by the immigration counsel.

Further, the USCIS will allow the authorized representativeto download a spreadsheet listing all H-1B beneficiaries included in a registration.  This file can be saved to ensure that the sponsoring entity does not file any duplicate registrations for a single beneficiary. According to the USCIS, this file will include the name, date of the birth and country of birth of each beneficiary only; it will not contain any other beneficiary data from the registration.

If the U.S. Petitioner will sponsor more than 250 beneficiaries in the registration process, it will be possible to download a file for each batch of registrations and combine them in a single spreadsheet to check for duplicates.

H-1B Cap Lottery

If the USCIS receives online registrations that exceed the cap, it will run two cap lotteries between March 20 at 12:01PM EST and March 31, 2020.

The first lottery will be run with all registered H-1B beneficiaries. The USCIS via this lottery will select registrations from the pool of regular H-1B cap of 65,000.

The second lottery will run with all registered “master’s cap” beneficiaries who were not selected in the first lottery. The USCIS via this lottery will select registrations from the pool of H-1B cap exemption of 20,000 from holders of U.S. advanced degrees.

It is anticipated that the USCIS will receive more than 85,000 online registrations (including both regular and advanced degree applications) and hence there is likely to be a random selection or lottery.  All potential beneficiaries must be registered during this period, to be included in the lottery should there be one. 

Notifying U.S. Petitioners and Immigration Counsel of Lottery Results

The USCIS will notify employers and immigration counsel of the lottery results by March 31, 2020. The USCIS will send an email to the employer’s authorized representativeand immigration counsel. This email will notify the recipient that there has been a change in the status of the Beneficiary filed under the cap registration.

To learn the lottery results, the immigrationcounsel or the company’s authorized representativewill need to access his or her my.USCIS.gov account and review the status of each beneficiary. “Selected” means the beneficiary has been chosen in the lottery. “Not selected” means the beneficiary was not chosen in the lottery, but his or her registration will be retained in the (unlikely) event that further H-1B cap numbers become available for FY 2021. “Denied” means that USCIS determined that there was a prohibited duplicate registration and the beneficiary was denied entry into the lottery.

Additionally, the my.USCIS.gov account, will provide a printable selection notice for each beneficiary chosen in the lottery. A copy of this selection notice must be included in the H-1B petition filed for the beneficiary.

Filing H-1B Petitions for Selected Beneficiaries in the Lottery

As per current USCIS instructions, H-1B petitions can be filed from April 1, 2020 until June 30, 2020. All FY2021 H-1B cap petitions must be submitted during the prescribed period. The USCIS will not accept late filings.

The USCIS has not yet announced whether premium processing will be available this cap season. We expect the USCIS to announce its decision by April 1, 2020.

Conclusion

We are only a few days away from when the H-1B cap-subject filing process starts.This pre-registration process shifts the date for initiation the H-1B process from April 1 as the pre-registration process will run from March 1, to March 20, 2020 (the Pre-registration Period), for H-1B work authorization beginning on October 1, 2020.  Hence it is important for employers to begin the process now if they have not done so already.  

As a reminder, H-1B petitions can be filed for foreign national workers in specialty occupations, i.e. those that require the theoretical and practical application of specialized knowledge (requiring at least a U.S bachelor’s degree or equivalent, in a specialized field).  Hence it is important that the profile for H-1B candidates meet the H-1B requirements.  Employers should also determine ability to comply with DOL requirements pertaining to SOC codes, prevailing wages etc. before initiating any on-line registration.  

Important points to note:

• If an employer misses the March 1 to March 20, 2020 Pre-registration Period, there will be no new H-1B visas for FY 2021 and the earliest you could initiate a new H-1B case would be in April 2021 for an employment start date of October 1, 2021.  
• The online registration tool is new and there is a risk of technical glitches and delays so being prepared in advance is extremely important.
• The new online LCA portal (FLAG.DOL.GOV) will also be under tremendous pressure due to increased volume in a finite period post the lottery.  This could result in a system failure or glitches and hence companies should consider filing LCAs in advance. Unused LCAs can be withdrawn.  
• A large number of online registrations are expected, as the threshold to participate in the online lottery are very low.
• A petitioner could face scrutiny and/or strictures for frivolous online registrations or for a pattern of nonuse of selected petitions – could have criminal ramifications.
• Online registration should be done only for eligible candidates who can fill the anticipated specialty occupation if selected.
• The new process will result in huge savings (time and expenses) for employers for this petitions that are no selected in the online, pre-registration lottery.