Is Your Human Resources Department Ready? The H-1B Season Is Almost Upon Us

By: NPZ Law Group, P.C.

Under the 2019 published final rule by the U.S. Department of Homeland Security, an electronic H-1B registration process has been implemented which requires a $10.00 registration fee for the cases that will have to be filed by the April 1st, 2022 cap season deadline.  One of the main goals under this regulation is to conduct the H-1B lottery before accepting petitions so that prospective H-1B employers know (in advance) if the case will be selected in the lottery before submitting a full and complete H-1B filing to the USCIS.

This Q&A below is adapted from information available about the H-1B program and has been modified to provide prospective H-1B employers and H-1B employees with guidance about how to prepare for the registration process for the 2022 H-1B nonimmigrant Visa Petition cap season.


Question: What is H-1B cap registration?Answer: It is a USCIS electronic registration process for prospective petitioners seeking to file H-1B cap-subject petitions.


Question: Who is covered by this electronic H-1B registration rule?Answer: The registration is only for prospective cap-subject petitions (i.e. not for cap-exempt employers such as universities or qualified research institutions nor, employees who have been already counted against the cap).


Question: When will the H-1B nonimmigrant Visa registration period begin?Answer: The process is “rolled out” as follows:

1. The initial registration period starts at least 30 days in advance (Beginning of March);

2. Initial registration period will begin at least 14 days before the first day of petition filing (April 1) and will last at least 14 calendar days;

3. If selected, a prospective H-1B employer has at least 90 days to file H-1B petition; and

4. USCIS may re-open registration at anytime (there would be no notice required).


Question: What is the government’s filing fee to register?Answer: There is a $10.00 non-refundable registration fee for each beneficiary.


Question: What information will be required by prospective H-1B employers and prospective H-1B employees to register for the electronic H-1B registration program?Answer: Following information will be required as part of the H-1B electronic registration program:

1. Full name

2. Date of birth

3. Country of birth

4. Citizenship

5. Passport number

6. Gender

7. An employer attestation that there is a bona fide temporary job offer for which the prospective H-1B employer intends to file an H-1B petition


Question: How many registrations can be submitted by a prospective H-1B employer for a prospective H-1B employee? 
Answer: An employer can submit one electronic registration for each prospective H-1B employee. Any prospective H-1B employer must submit a separate registration for each prospective H-1B employee it seeks to register. No duplicates will be permitted. However, it is important to note that multiple employers can submit one H-1B electronic registration on behalf of the same prospective H-1B employee.


Question: What happens if a duplicate electronic registration is submitted submitted for any prospective H-1B employee? 
Answer: If an H-1B employer submits a duplicate or multiple H-1B electronic registration for the same prospective H-1B employee, all registrations for the prospective H-1B employee will be rejected. However, a prospective H-1B may have multiple prospective H-1B employers submit electronic registration forms on their behalf.


Question: Will a prospective H-1B employer be required to provide information about the offered position in the initial H-1B electronic filing? 
Answer: Information about the position to be offered to the prospective H-1B nonimmigrant will not be required to be initially submitted but it is important to assess the requirements for the position and the qualifications of the employee to ensure that a prospective non-frivolous H-1B petition will be filed.


Question: Is the employer required to establish eligibility for H-1B status when submitting the registration? 
Answer: No, if the petition is selected in the the H-1B visa lottery then the prospective H-1B employer will be required to provide information about the employer organization and the specialty occupation position being offered to the prospective H-1B nonimmigrant employee.


Question: Is a Labor Condition Application (LCA) required to be filed with Department of Labor before the H-1B electronic registration can be filed? 
Answer: No, but the Labor Condition Application (LCA) preparation ahead of time will certainly be advisable including determining the prevailing wage, posting, and filing with the DOL before the electronic H-1B registration occurs to ensure the prospective H-1B employer organization has a certified LCA if selected and submission of the application can occur within a short time of the resulting H-1B electronic lottery results notification.


Question: Does the prospective H-1B nonimmigrant professional and specialty occupation employer get a receipt upon completion of the electronic registration process? 
Answer: A confirmation number will be assigned by the USCIS which will be a different number from the USCIS receipt number.


Question: How will the electronic H-1B lottery be conducted? 
Answer: USCIS will first conduct the lottery for the 65,000 numbers and include all registrations. USCIS will then conduct a second lottery for the 20,000 numbers reserved for U.S. advanced degree holder registrations. This process change was designed to increase the chances of prospective H-1B employees with a master’s or higher degree from a U.S. institution of higher education to an estimated 16% (or 5,340 workers).



Question: What does the prospective H-1B nonimmigrant Visa employer supposed to do once they receive information that a prospective H-1B nonimmigrant has been chosen in the lottery and been allotted an H-1B visa number? 
Answer: The next step after the lottery has been conducted is for the prospective H-1B employer to prepare and to file the H-1B petition with the USCIS. The prospective H-1B employers will be given 90 days to file petitions for selected employees.


Question: Because of the low barrier to entry by paying a nominal fee of $10.00 per registration, what measures has USCIS put in place to deter frivolous applications? 
Answer: USCIS has confirmed that it intends to monitor the electronic registration system for prospective H-1B employers who submit a large number of H-1B registrations and then later file only a few selected petitions at a significantly lower rate.


Question: May an attorney submit an electronic H-1B registration for a prospective H-1B employer and prospective H-1B employee?Answer: Yes, attorney will be able to file electronic H-1B registrations for their clients using the Form G-28, Notice of Entry of Appearance as Attorney.


Question: How are the electronic registration fees supposed to be paid?Answer: Payment for electronic H-1B registrations must be received on the government website at www.pay.gov via ACH or credit card.


Question: Will the government accept cashier’s check or money order for the electronic H-1B registration fee?
Answer: Cash, certified (bank) checks, and/or money orders is prohibited.
 
Question: What is the benefit of working with prospective H-1B nonimmigrants to prepare the documents and LCA before a potential notification that a prospective H-1B employee was selected in the electronic registration lottery system? 
Answer: According to USCIS guidance, H-1B petitions - chosen in the electronic registration process - submitted at the beginning of the 90-day period will be adjudicated first. OPT cap-gap planning is required to minimize interruptions in work authorization before October 1st. Careful contingency planning for cap-gap cases is necessary as new electronic registration applications will NOT result in cap-gap benefits unless they are selected. Prospective H-1B employers must carefully review all cases thoroughly to ensure that cap-gap cases are timely filed if chosen in the electronic registration process.


Question: are there any other strategic consideration that prospective H-1B employers need to consider for the upcoming H-1B cap season? 
Answer: Prospective H-1B employers may want to consider advancing the recruiting timeline by at least three months to identify prospective H-1B employees who will need H-1B cap sponsorship by late November or early December.

For more information about the H-1B professional and specialty occupation work visa, please feel free to contact us at 201-670-0006 (x107). For more information about the H-1B process please feel free to visit our website at http://www.visaserve.com

Our Client Relations Manager can be emailed directly at [email protected] Our U.S. Immigration and Nationality Lawyers and Attorneys would be pleased to assist you with employment based, family based, and individual immigration matters.
 
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