In December of 2019, USCIS announced that they were going to implement a new H-1B Electronic Registration Process to select who would be eligible to file H-1B cap-subject petitions for the 2021 fiscal year (which runs from October 1, 2020 to September 30, 2021). This program is intended to issue up to 65,000 H-1B visas for high skilled workers and 20,000 H-1B visas for applicants with master’s degree holders during the 2021 fiscal year. The intent behind this new process is to streamline the process by reducing the paperwork and data that needs to be exchanged between petitioners and USCIS.
The deadline to register for this fiscal year is now behind us (closed as of March 31, 2020), but we can use this information to see what to expect for next year.
Registration Process
Starting on February 24, 2020, prospective petitioners were able to make a USCIS online account. At this point, petitioners could only select their account type (set to “I am an H-1B Registrant”).
On March 1, 2020, the registration period opened at noon eastern time. From March 1st until March 20th, prospective petitioners were able to register to be eligible to potentially file for an H-1B visa. There was a $10 registration fee for each beneficiary. So, if a company was hoping to petition multiple people, they had to pay $10 times the number of petitions they hoped to submit.
USCIS said that all selected registrants would be notified by March 31st, and selected registrants could start filing their petitions on April 1st. Note that USCIS later said that petitioners should expect a delay in receipt notice for these petitions due to the impacts that COVID-19 has had on the agency.
Potential Results
A potential petitioner would have gotten one of four possible statuses for their registration(s):
Submitted | People who had their status remain as “Submitted” even after notifications went out are still in consideration for selection until the end of the fiscal year. If you are someone who applied in this latest round, this means that there is still a chance you may be able to file a petition later this year. However, this does not mean that you SHOULD file a petition right away as you were not selected, and the petition would be denied. |
Selected | People who were selected were then able to file an 2021 H-1B cap-subject petition starting on April 1st. |
Not Selected | This status actually should not appear for anyone at this time. It is a status reserved for the end of the fiscal year when USCIS knows for sure that it will not move certain registrations from “Submitted” to “Selected.” |
Denied | This status means that you cannot file a petition and you will not be in consideration for a petition, at least through this registration. This will likely come up if the same registrant or representative submitted more than one registration on a certain beneficiary’s behalf during the same fiscal year. |
If you were not able to apply during this registration cycle, you can use this information to prepare for the next cycle opening next year. There do appear to be some problems with the system, so we may see some changes to it, but it is likely that it remains mostly the same. If there are any changes announced, we will provide updates on those changes.
Filing the H-1B Cap-Subject Petition
If you were selected to be able to file an H-1B visa, you could do so starting April 1, 2020. To properly petition for H-1B visa, you must file a completed Form I-129 Petition for a Nonimmigrant Worker, along with the H Classification Supplement (on page 15 of the petition) and the H-1B Data Collection and Filing Fee Exemption Supplement (starting on page 21). For the H Classification Supplement, make sure to include the “Beneficiary Confirmation Number” that you received from the H-1B Registration Selection Notice (Page 15, Question 5). Additionally, you have to provide the Selection Notice with the petition.
Make sure to indicate that the worker will have a start date of October 1, 2020 (the first day of the 2021 fiscal year) or the petition will be rejected or denied.
As part of your petition, you will need to provide the following additional documents:
- Labor Condition Approval: This is a document that the employer must seek and have approved. It is known as an Labor Condition Application (ETA 9035) (LCA) and is a certification by the Department of Labor that allows an employer to hire a foreign worker. Note that if an employer has previously received an LCA for a past hire, the employer can use the same CA by providing the name and USCIS case receipt number for the case where the LCA was used.[1]
- Evidence of Beneficiary’s Educational Background: This primarily means that you must include a copy of the degree awarded (with English translations if not already in English). If the beneficiary has not received the degree yet, they can instead provide a copy of their final transcript or a letter from the registrar indicating that the degree requirements have been met.
Once you have everything together, it is time to send it in with your filing fee. You have to make sure you send the right fees and that you send everything to the right place. Both of these things change depending on specific factors such as your geographic location and how many employees the employer has. The mailing information can be found in a handy chart here. The filing fee for the I-129 alone is $460 and the information on other H-1B fees can be found in a handy chart here.
How We Can Help
The entire process of bringing in a new foreign worker is long and complicated. Our attorneys have years of experience handling H-1B visas and we can help you do it right from start to finish.
To schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.
[1] The number of times an LCA can be used is limited by the number an employer put on the LCA when they filed it Check page 1, Section B of Form ETA-9035.