On March 1, 2020, United States Citizenship and Immigration Services (“USCIS”) will be implementing a new electronic registration process as part of its annual H-1B Cap Lottery. Given that the upcoming Fiscal Year 2021 (“FY2021”) H-1B Cap Lottery will be the first to be conducted using this new registration process, U. S. employers seeking to employ foreign nationals on H-1B visas as of October 1, 2020 likely have many questions about what to expect.  While USCIS is still in the process of providing details and guidance about many aspects of this new process, here is what we know to date about how the upcoming H-1B cap lottery registration process will work:

The USCIS Electronic Registration Process For Entering Sponsored Foreign Nationals In The H-1B Cap Lottery

Under the new H-1B cap lottery registration process, all U.S. employers who wish to sponsor a foreign national for an FY2021 cap-subject H-1B petition must submit an electronic registration to USCIS for each individual foreign national they wish to sponsor.  There will be no paper filing option; all registrations must be submitted using the prescribed USCIS online registration tool. For this “maiden run” of its electronic registration process, USCIS has indicated that its online registration tool will remain available for a period of 20 calendar days, commencing at 12:00 p.m. EST on March 1, 2020, and ending at 12 p.m. EST on March 20, 2020.  There is no mechanism for drafting or pre-preparing a registration submission before the registration period opens on March 1, 2020.

USCIS is only legally required to offer a registration period of a minimum of 14 calendar days.  Therefore, some are concerned that USCIS could shorten the upcoming initial registration to less than 20 calendar days if it receives sufficient registrations to conduct the lottery by March 14th or shortly thereafter.  This concern is magnified by the fact that USCIS has clarified that foreign national beneficiaries are not required to have completed the qualifying degree requirements for the H-1B visa petition at the time that the U.S. employer submits the registration electronically on their behalf.  The foreign national need only complete the degree requirements at the time the full H-1B petition is filed.  Therefore, foreign nationals completing their required degree requirements in April, May or June, 2020 are eligible to participate in the FY 2021 lottery.  As the prior paper lottery did not permit such pre-degree completion eligibility, it is anticipated there will be a significant increase in the number of lottery registrations.  This anticipated increase could easily result in USCIS receiving sufficient registrations to conduct the lottery during the initial 14 days of the current 20-day registration process.  Accordingly, U.S. employers should make every effort to submit their registrations before 12:00 p.m. EST on March 14th rather than risking that USCIS will close the lottery registration process earlier than March 20th.

Registrants will be asked if the sponsored foreign national holds a master’s or higher degree from a U.S. institution of higher education, entitling him/her to participate in the lottery for the additional 20,000 H-1B visa numbers available for such degree holders.  U.S. employers must also pay a $10 USCIS registration fee for each foreign national they register for the lottery.  This fee may be paid either by the U.S. employer or by the U.S. employer’s legal counsel via the U.S. Federal Government’s Pay.gov portal.  Notably, the registration form will not require any information about the offered position or require proof of a certified Labor Condition Application (“LCA”).  However, employers should be prepared to discuss the specific job duties, minimum requirements, and proposed salary range for the position with their legal counsel, as the offered position should be assessed and evaluated before submitting a registration in order to confirm that it meets the eligibility requirements for the H-1B visa.

The sponsoring U.S. employer is required to participate directly in the USCIS online lottery registration process.  During the period beginning on February 24, 2020 and presumably ending at 12:00 p.m. EST on March 20th, the individual authorized to sign the H-1B petition forms for the U.S. employer must access the official USCIS website and utilize myUSCIS to create a personalized USCIS online H-1B registrant account.  The H-1B registrant online account must be based on the individual user’s email address and cannot be shared with the U.S. employer’s other employees.  The account will use a two-step verification method based on the assignment of a verification code sent to the account holder via an authentication app (such as Authy or Google Authentication) on a mobile device, SMS text message or email. Given concerns about the ability of myUSCIS to support the anticipated onslaught of employer account creations for the upcoming FY 2021 lottery, U.S. employers wishing to sponsor foreign nationals in this lottery would be wise to create their USCIS online accounts as early as possible during the registration process.

U.S. employers can use their USCIS online accounts to create electronic registrations for each foreign national they wish to sponsor in the lottery, pay their required registration fee(s) on Pay.gov, and electronically submit their lottery registrations to USCIS.  If a sponsoring employer engages an attorney or accredited representative (jointly referred to as “representatives”) to create and submit its H-1B lottery registrations electronically to USCIS, representatives will open their own H-1B registrant account for that purpose.  After representatives have drafted the registration form and a Form G-28 Appearance for the sponsoring employer, these drafts will be saved to the representatives’ account.  The representatives will be provided with a representative’s online case access passcode for use by the sponsoring employer.  The sponsoring employer will use this passcode to synchronize the employer’s personalized USCIS online H-1B registrant’s account with the representatives’ H-1B registrant’s account in order to gain access to the employer’s case created by the representatives.  After gaining such access, the sponsoring employer must review for accuracy the H-1B registration form and Form G-28 created by the representatives on its behalf.  It must then either accept and sign these forms or decline them and send them back to the representative for revision and resubmission.  After the sponsoring employer has accepted and signed the H-1B registration and Form G-28, the representatives will utilize their USCIS online H-1B registrant account to access Pay.gov and pay the required registration fee(s) and electronically submit the H-1B registration on the employer’s behalf.

The Electronic Lottery Selection, Notification and H-1B Petition Submission Process

If USCIS receives more registrations than the amount of H-1B visa numbers available for FY2021, USCIS will conduct a lottery, as it has in years past, in order to select registrations randomly.  After conducting the lottery, USCIS will electronically notify the party who submitted the registration of the submission’s selection in the lottery. USCIS has indicated that these electronic notifications will be sent by March 31, 2020.  Starting on April 1, 2020, USCIS will begin accepting H-1B petitions for registrations that were selected in the lottery. U.S. employers will have at least 90 days from the date of the registration selection to submit a fully completed H-1B petition to USCIS for adjudication. According to USCIS, it will adjudicate each FY2021 H-1B Cap petition in the order that it was received. USCIS has not yet indicated whether premium processing will be available for FY2021 H-1B Cap petitions.

H-1B “Cap Gap” protections for foreign students with F-l visas who are completing their initial or STEM optional practical training before October l, 2020 will only attach upon the filing of the fully completed H-1B petition with USCIS. Therefore, U.S. employers sponsoring foreign students with initial or STEM optional practical training (“OPT”) periods that end shortly after April l, 2020 should be prepared to file full H-1B petitions upon notification of the selection of their registrations in the lottery in order afford such students with required automatic extension of their F-l status and U.S. work authorization.

Also, a word of caution to U.S. employers who seek to abuse the electronic lottery registration process by filing registrations for which they do not file an H-1B petition after selection in the lottery.  USCIS has stated that it will review cases that demonstrate a pattern and practice of such abuse, and, where appropriate, seek to impose monetary fines and criminal penalties for making false statements and misrepresentations to the U.S. Government.

There are still some lingering questions regarding this FY2021 H-1B cap lottery process. Given this continued uncertainty, employers may not wait to the last minute to submit an electronic registration for FY2021 H-1B cap lottery. Instead, U.S. employers who anticipate sponsoring a foreign national for an FY2021 H-1B cap-subject visa should begin working with legal counsel immediately to provide the requisite registration information, coordinate their registration efforts, and assess whether the position offered to the foreign national satisfies the H-1B visa eligibility requirements.