LawFlash

H-1B Filing Season for Fiscal Year 2021 Is Here

December 06, 2019

Now is the time for employers to begin assessing their FY2021 H-1B needs. Employers should review the immigration status of their current and potential foreign national employees and identify any individuals for whom H-1B status might be beneficial.

These individuals include the following:

  • Recent college and university graduates employed in F-1 optional training status
  • Candidates abroad who are subject to the annual H-1B cap
  • Candidates in another nonimmigrant status (e.g., L-1B) who are approaching the maximum limits of their status and would benefit from a change of status to H-1B
  • Candidates currently employed pursuant to an H-4 employment authorization document (EAD) who wish to become independent of the spouse’s H-1B status or who are concerned about continuity of the H-4 EAD program
  • Candidates in another nonimmigrant status who work for a different employer and would require an H-1B visa to change jobs
  • Candidates in TN, E, or H-1B1 status for whom an employer is considering pursuing permanent residence

The US Citizenship and Immigration Services (USCIS) has a quota of 65,000 cap-subject H-1B visas each fiscal year. (By law, 6,800 of those visas are allocated as H-1B1 visas to nationals of Chile and Singapore.) A separate allotment of 20,000 H-1B visas is available to foreign nationals who hold a master's or other advanced degree from a US institution of higher education. Only petitions filed on behalf of foreign nationals who have not previously been counted against the H-1B cap in the last six years are subject to this year's H-1B cap. H-1B petitions for foreign nationals employed by institutions of higher education, nonprofit research organizations, or at governmental research organizations are not subject to the cap.

Last year, USCIS implemented a rule reversing the order by which it selects H-1B petitions under the H-1B regular cap and the advanced degree exemption. The rule requires that USCIS first conduct the “regular” lottery for 65,000 visas with the master’s degree beneficiaries included. Then, USCIS puts the remaining US master’s degree beneficiaries into a lottery for the separate 20,000 US master’s degree allocation. Changing the order in which USCIS counts these allocations increases the number of petitions selected for beneficiaries with master’s or higher degrees from US institutions of higher education.

It is of note that the degree of scrutiny applied to H-1B petitions is at an all-time high, with a dramatic increase in the issuance of requests for evidence (RFEs) for, and denials of, such petitions. This trend is likely to continue this year, and petitioners should be prepared for an increasingly narrow interpretation of the rules relating to eligibility for H-1B status. The following are areas of concern for the USCIS, and may result in the issuance of an RFE or possibly a denial, if not addressed to the satisfaction of USCIS:

  • The use of a Level I wage in the supporting Labor Condition Application (LCA)
  • The use of an “All Other” Standard Occupational Classification (SOC) occupation title in the supporting LCA
  • Proposed employment of the beneficiary as a computer systems analyst, operation research analyst, or market research analyst
  • Proposed employment in any other position that does not appear to be a specialty occupation or where the beneficiary’s education does not appear to be connected to the position to be held
  • Positions for which the employer will accept a range of bachelor’s degrees that are not in closely related subjects

What Is New? Preregistration for Cap-Subject H-1b Petitions

Registration

In previous years, when USCIS received more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, was used to select the petitions that were counted toward the number of petitions needed to reach the cap. As of now, USCIS tentatively plans to implement the new preregistration program for the FY2021 cap season, pending final testing. The preregistration program will require petitioners seeking to file H-1B cap petitions, including those who may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period and pay a $10 nonrefundable fee for each H-1B registration.

USCIS has confirmed that it will provide notice of at least 30 days prior to the opening of the registration period, and the electronic registration process itself will begin at least 14 calendar days before the first business day of April, and last at least those 14 calendar days. To register for filing in the online system, petitioners will submit an online form listing each prospective H-1B beneficiary they intend to hire.

To complete the registration, petitioners will be asked to provide basic information. This may include, but is not limited to, (1) the employer’s name, employer identification number (EIN), and mailing address; (2) the employer’s authorized representative’s name, job title, and contact information; (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number; (4) whether the beneficiary has obtained a master’s or higher degree from a US institution of higher education; and (5) the employer’s attorney or accredited representative, if applicable. Only one registration will be permitted per beneficiary per petitioner, and no substitution of beneficiaries will be allowed.

Selection

Once the registration period ends, if USCIS has received enough registrations to reach the cap, it will conduct a lottery among the registrations received. USCIS will conduct the lottery using the reverse selection order implemented last year. USCIS will first select from all registrations (regular and advanced degree exemption) until the regular cap is reached, and then select registrations that are eligible for the advanced degree exemption until the advanced degree exemption is reached.

  • The unselected registrations will be kept on reserve for the applicable fiscal year. If USCIS determines that it needs to increase the number of registrations projected to meet the allocation and select additional registrations, the agency will choose from those on reserve, or reopen the registration period if there are not enough registrations on reserve.

     

  • If insufficient registrations are received during the original registration period, USCIS will announce that all registrations on reserve will be selected and that the registration period remains open. When USCIS determines that it has finally reached the number of registrations to meet the cap, the agency will announce this on its website, and, if necessary, conduct a lottery among the additional registrations received during this added period.

Filing

Only those prospective H-1B beneficiaries whose registrations are selected will be eligible to have H-1B cap-subject petitions filed on their behalves. USCIS is proposing to provide a petition filing period of at least 60 days to each selected registrant. USCIS will individually notify all petitioners with selected registrations that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the named beneficiary within a designated filing period. USCIS anticipates that there will be several filing periods for each fiscal year. Accordingly, if implemented as planned, the preregistration program would eliminate the need for paper filings prior to the lottery process for cap-subject H-1B petitions, which is meant to give USCIS the flexibility to stagger H-1B cap petition filings and minimize backlogs.

Actions to Take Now

There is still uncertainty surrounding the implementation of the new preregistration program, including the payment method for the $10 nonrefundable fee and whether the online system will clear testing in time for the FY2021 cap season. However, we recommend that employers begin assessing their FY2021 H-1B needs now, identifying current and potential foreign national employees for whom H-1B status might be beneficial, in preparation for the designated registration period.

If the new preregistration program is not implemented in time for the FY2021 cap season, employers will file H-1B cap petitions as they have in previous years, unless USCIS confirms otherwise. Morgan Lewis will issue updates as we learn more from USCIS related to the upcoming FY2021 cap season. However, even if the new preregistration program is not implemented in time for the FY2021 cap season, we still we recommend that employers begin assessing their FY2021 H-1B needs now to prepare for an April 1 filing deadline, as in previous years.

Contacts

If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Miami
Laura C. Garvin

San Francisco
A. James Vázquez-Azpiri
Christina M. Gonzaga