As we approach the holiday season, immigration practitioners, interested employers, and foreign nationals are gearing up for yet another H-1B lottery season. The upcoming lottery season will be significantly different than in previous years due to USCIS’s implementation of a new H-1B electronic registration system that will dramatically change how H-1B cap-subject petitions are filed and selected.

New H-1B Electronic Registration System

On January 31, 2019, the Department of Homeland Security published a new rule introducing an electronic registration system for cap-subject H-1B petitions. On December 6, 2019, USCIS announced that the new system will be used for the upcoming FY2021 H-1B lottery season. USCIS expects that shifting to electronic registration will reduce overall costs for employers and create a more efficient and cost-effective H-1B lottery process.

Under the new system, employers seeking to file cap-subject H-1B petitions will complete an electronic registration process by submitting basic information about the company (name, FEIN, address, and name, job title, phone number, and email address of authorized point of contact) and each requested cap-subject H-1B worker (name, gender, date and country of birth, citizenship, passport number, and whether the candidate has a U.S. master’s or higher degree). Employers will be required to attest that they intend to file an H-1B petition on behalf of the foreign worker named in the registration if selected.  There is a $10 registration fee for each worker to be paid with a credit card or U.S. bank account. The registration window will be open fro m March 1 to March 20, 2020. After the registration period closes, USCIS will conduct a random selection using the registrations and then notify employers which foreign workers have been selected. Employers may only submit full H-1B petitions and supporting evidence for the workers whose registrations have been selected in the lottery. USCIS has previously indicated that employers will have no fewer than 90 days to file a full petition for selected workers.

Preparation for FY2021 H-1B Registration/Lottery

Despite the significantly reduced costs of participation in the H-1B lottery under the new electronic registration system, employers should keep the following guidelines in mind when preparing for the upcoming H-1B season:

• The ease of electronic registration should not be confused with a relaxation of H-1B requirements or adjudication standards. The registration system is not meant to establish H-1B eligibility; it is simply a mechanism that USCIS will employ to decide which registrations will be afforded an opportunity to submit a full petition for consideration on the merits. Rates of requests for evidence and denials remain at historic highs.
• It is paramount that employers work with immigration counsel to conduct due diligence and assess the viability of each  case before entering the registration. Employers should resist the temptation to enter registrants without first ascertaining whether there are potentially insurmountable hurdles in the case, such as a lack of necessary qualifications, an offered position that is not H-1B caliber, or difficulty in meeting the prevailing wage.  
• Employers should now undertake the process of identifying those current and prospective employees who may require H-1B sponsorship. Although the registration period does not open until March 1, 2020, it is important to be proactive so there is sufficient time to conduct the due diligence discussed above.

There are still many unknowns about the upcoming H-1B lottery season. Employers should work closely with their immigration counsel to stay on top of the latest developments and prepare themselves for registration and filing under the new system. Also, given the current tight job market and the nominal $10 fee for entering the H-1B lottery, there may be a significant increase in the number of lottery entrants. Some employers may be more willing to submit a registration under the new system than they were willing to incur the substantial costs associated with submitting a complete petition and filing fees in previous years. Because an increase in lottery entrants would correspond to decreased chances of selection, it is important to manage expectations and plan for contingencies for H-1B candidates.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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