Legal Matters: New H-1B Visa registration period opens - and closes soon

By Tim Wheelwright

U.S. Citizenship and Immigration Services (USCIS) recently announced it is changing the way it allocates the annual quota of H-1B visas. Companies seeking a new H-1B visa must first register online before they will be eligible to petition for a visa. The initial registration period opened at noon Eastern on March 1 and will remain open through noon Eastern on March 20.  Employers interested in seeking one of these visas in 2020 must act quickly; otherwise, they must wait until next year when a new allotment is available.{mprestriction ids="1,3"}

The H-1B visa is one of the most common temporary work visas available for U.S. companies to employ foreign professionals in the United States.  A total of 85,000 new H-1B visas become available each year, with 20,000 reserved exclusively for foreign workers with a master’s or higher degree from a U.S. university.

Eligibility for an H-1B visa centers on two principal requirements: 1. Whether the job in which the foreign worker will work is a “specialty occupation” (requires at least a bachelor’s degree in a specific field of study), and 2. Whether the foreign worker possesses the required qualifications for the job at the time the petition is filed. The U.S. government will not approve a petition unless an employer satisfies both requirements.

During the initial registration period, an employer must electronically submit a separate registration for each foreign worker for whom it seeks to file a cap-subject H-1B visa petition for the fiscal year 2021 H-1B cap. USCIS will then randomly select from those electronic registrations the number of registrations projected as needed to reach the 2021 H-1B quota (65,000 regular cap and 20,000 advanced-degree cap). Only those employers with selected registrations will be eligible to file a cap-subject petition and only for the foreign worker named in the registration. USCIS will not consider a cap-subject petition properly filed unless the employer files it with a valid registration for the same foreign worker and the appropriate fiscal year. Additionally, USCIS will discard any duplicate registrations for the same foreign worker by the same employer in the same fiscal year.

The following is an overview of the new H-1B visa petition process:

Step 1:  Gather information about the job and the foreign worker to evaluate suitability for an H-1B visa. The employer and the foreign worker complete questionnaires and gather required documents. The most important document the employer must prepare is a job description with very detailed job duties and the minimum qualifications required to perform each duty.  It is critical that the job require a minimum of a bachelor’s degree in a specific field of study. Employers should resist any urge to bypass this first step. Submitting a registration without first confirming that the job and the foreign worker are suitable for an H-1B visa could cause significant problems for the employer or the foreign worker later in the application process. With a job and a foreign worker deemed suitable for an H-1B visa, the employer may proceed with confidence to Step 2.

Step 2:  The employer or its counsel prepares and submits a separate electronic registration naming each foreign worker for whom it seeks a cap-subject H-1B petition and pays the $10 registration fee per foreign worker. When counsel represents the employer, it prepares the registration and pays the registration fee for the employer. Counsel then sends a one-time passcode to the employer. The employer creates its own myUSCIS online account, enters the passcode and reviews and accepts the registration and Form G-28. Counsel then submits the electronic H-1B registration. Counsel must complete all of these tasks by no later than noon (EDT) on March 20.

Step 3: If USCIS randomly selects a registration, it will notify the employer of that by approximately March 31. The employer then prepares and files a complete H-1B visa petition package with USCIS within 90 days of its selection date. If represented by counsel, the employer’s counsel gathers any additional information or documentation from the employer and/or the foreign worker and then prepares and files the H-1B visa petition package with USCIS, including an application for the foreign worker’s dependents, if any. The filing fees for the visa petition range from $1,710 to $2,460 per worker. If desired, an employer may request the optional premium processing service. Paying this additional $1,440 filing fee does not increase the likelihood of approval, but it does speed up the process significantly. The filing fees for the dependent’s application is a base fee of $370 plus $85 per family member.

Step 4: Wait for USCIS to make a decision on the petition.  The current estimated processing time is 9-12 months, but an employer can reduce that to just 15 calendar days by requesting premium processing. It is increasingly common for USCIS to issue a Request for Evidence (RFE).  If that happens, USCIS gives the employer approximately 87 days to respond.

Because these visas are in such high demand, we recommend that an employer not wait to file for a qualified foreign worker until a subsequent fiscal year. Register now. If not selected this year, the employer may need to work with counsel to identify suitable alternatives for the foreign worker.

Tim Wheelwright is a shareholder with the law firm of Durham Jones & Pinegar. He advises individuals and businesses on routine and complex immigration matters, including worksite enforcement, I-9 forms, E-Verify, etc.{/mprestriction}