Featured Issue: FY2021 Cap-Subject H-1B Filing Season

AILA provides a practice alert summarizing a DHS final rule published on 1/8/2021 that would replace the current random selection process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions with a wage based selection process. The rule is scheduled to take effect on 3/9/21.

• Practice Alert: DHS Publishes Final Rule Creating Wage Based Selection System for Cap Subject H-1B Petitions – January 11, 2021

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AILA has received reports of members receiving rejections, denials, or administrative closures of their FY2021 H-1B cap-subject petitions because they requested a start date after 10/1/20. AILA seeks examples to determine the magnitude of the problem to gauge its liaison and litigation efforts.

• Call For Examples: H-1B Cap-Subject Petitions Rejected or Denied for Failure to List an October 1, 2020, Start Date

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On December 29, 2020, AILA provided feedback to USCIS on the H-1B electronic registration process and recommendations for improvements. AILA addressed account creation issues, duplicate registrations, selection issues, and rejections/denials for failure to list a 10/1 start date, among other things.

• AILA Provides Feedback to USCIS on FY2021 H-1B Electronic Registration Process and Recommendations for Improvements - December 29, 2020

USCIS has confirmed that the H-1B lottery registration will be through the myUSCIS portal. Create a myUSCIS account with this step-by-step how to by AILA’s Practice & Professionalism Center. (It addresses what two-factor authentication options are and which to choose, too.) USCIS released videos with instructions on how to create a myUSCIS account and the electronic registration process for registrants as well as attorneys and representatives:

How to Create a USCIS Online Account

H-1B Electronic Registration Process: Registrants

H-1B Electronic Registration Process:
Attorneys and Representatives

Per USCIS:

We will open an initial registration period from March 1 through March 20, 2020, for the FY 2021 H-1B numerical allocations.

• During this timeframe, H-1B cap-subject petitioners, including those eligible for the advanced degree exemption, seeking to file a FY 2021 H-1B cap petition will be required to first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission.
• Prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition. Duplicate registrations are prohibited.
• As described in the H-1B registration final rule, if more than a sufficient number of registrations are received, we will randomly select the number of registrations projected as needed to reach the FY 2021 H-1B numerical allocations after the initial registration period closes and notify registrants with selected registrations no later than March 31, 2020.
• Prospective petitioners with selected registrations will be eligible to file a FY 2021 cap-subject petition only for the alien named in the registration and within the filing period indicated on the eligibility notice.

We will not consider a cap-subject H-1B petition to be properly filed unless it is based on a valid, selected registration for the same beneficiary and the appropriate fiscal year, unless the registration requirement is suspended. Additionally, although petitioners can register multiple aliens during a single online submission, a petitioner may only submit one registration per beneficiary in any fiscal year. If a petitioner submits more than one registration per beneficiary in the same fiscal year, all registrations filed by that petitioner relating to that beneficiary for that fiscal year will be considered invalid.

On February 5, 2020, USCIS released the following information about registration selection notifications:

USCIS intends to notify registrants and their representatives with selected registrations via their USCIS online accounts no later than March 31, 2020.

A registrant’s USCIS online account will show one of the four following statuses for each registration:

• Submitted: A registration status may continue to show “Submitted” after the initial selection process has been completed. "Submitted" registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will be Selected, Not Selected or Denied.
• Selected: Selected to file an FY 2021 H-1B cap-subject petition.
• Not Selected: Not selected for this fiscal year.
  
  • Please note that a registration will not reflect a status of Not Selected until the conclusion of the fiscal year. In the event that USCIS determines that it needs to increase the number of registrations projected to meet the H-1B regular cap or the advanced degree exemption allocation, USCIS will select from registrations held in reserve to meet the H-1B regular cap or advanced degree exemption allocation.
• Denied: The same registrant or representative submitted more than one registration on the beneficiary’s behalf for the same fiscal year. All registrations the registrant or representative submitted on behalf of the same beneficiary for the same fiscal year are invalid.

H-1B cap-subject beneficiaries, including those eligible for the advanced degree exemption, must have a “Selected” registration notification in order for a registrant or representative to properly file an H-1B cap-subject petition for FY 2021. Registrants and representatives will not be notified until the end of the fiscal year if they are not selected. The status of registrations not selected as part of any initial random selection process and not denied will remain as “Submitted.”

AILA Resources | AILA Resources on Setting Up an H-1B Registration Account | Government Resources | AILA Comments and Communication with USCIS | Media Reports

AILA Resources

• Practice Alert: DHS Publishes Final Rule Creating Wage Based Selection System for Cap Subject H-1B Petitions – January 11, 2021
• Call For Examples: H-1B Cap-Subject Petitions Rejected or Denied for Failure to List an October 1, 2020, Start Date
• Practice Pointer: FAQs Regarding the New Electronic H-1B Registration Process - October 14, 2020
• Practice Alert: USCIS Selects Additional Registrations for the FY2021 H-1B Cap – August 14, 2020
• Survey on H-1B Registrations Selected But Not Filed for FY2021 Filing Season – June 23, 2020
• Practice Alert: H-1B Registration Selected in the FY2021 H-1B Visa Lottery But Not Filing an H-1B Petition: What’s Next? – June 8, 2020
• Practice Alert: Successor-in-Interest Issues for FY2021 H-1B Cap-Subject Petitions – May 28, 2020
• Practice Pointer: AILA Provides FY2021 H-1B Filing Tips and Resources – May 21, 2020
• Practice Pointer: Extraordinary Circumstances for Extraordinary Times for H-1B and other Nonimmigrant Worker Petitions – May 20, 2020
• Practice Alert: Reports of H-1B Receipt Notices Erroneously Listing Authorized Signatory from H-1B Registration Process as the Petitioner – May 13, 2020
• Practice Alert: New Filing Location for Certain H-4 EAD Applications – May 13, 2020
• Practice Alert: Reports of H-1B Receipt Notices Erroneously Listing Authorized Signatory from H-1B Registration Process as the Petitioner - April 28, 2020
• Practice Alert: H-1B Registrations Denied Due to Duplicate Submissions – April 9, 2020
• Practice Alert: USCIS Provides Clarifications Regarding Filing Issues Involving FY2021 H-1B Cap-Subject Petitions - April 7, 2020
• Practice Alert: Completing the H-1B Electronic Registration Process for Individuals Born in Gaza – March 19, 2020
• Practice Alert: DOL OFLC Explains Slight Delays in Receipt of an Assigned LCA Case Number in the FLAG System – March 9, 2020
• Practice Alert: H-1B Registration Tool Glitch Misidentifies Attorneys as Not Eligible to Practice Law - March 6, 2020
• Practice Alert: Updates Regarding Implementation of the H-1B Electronic Registration Process – February 25, 2020
• Preparing Your Staff and Lawyers for a New H-1B Workflow - February 13, 2020
• Kristen A. Harris, Susan S. Im, Justin F. Russo, and Andrea L. Wizner: FY2021 H-1B Season: Electronic Registration and What You Need to Know – January 28, 2020
• Preparing Everyone for the New H-1B Workflow – December 19, 2019
• Preparing for a Different H-1B Season: Strategizing and Staffing for the New Lottery Tool - November 27, 2019
• Practice Alert: USCIS Publishes Proposed H-1B Registration Fee Rule – October 4, 2019
• H-1B Cap Season FY2020: The End of an Era – May 21, 2019
• Practice Alert: DHS Publishes Final Regulation Governing H-1B Cap Subject Petitions – January 31, 2019
• AILA Explains: DHS’s Changes to the H-1B Visa Lottery Process – Impact and Concerns – January 31, 2019
• AILA Quicktake #259: DHS Publishes Final Rule on H-1B Cap-Subject Petitions – January 30, 2019
• AILA Quicktake #254: DHS Announces Proposed Rulemaking for the H-1B Visa Program – December 3, 2018
• Think Immigration: Proposed H-1B Policy Creates New Uncertainty for American Employers – December 5, 2018

AILA Resources on Setting Up an H-1B Registration Account

• Practice Alert: Verify Access to myUSCIS Account Before H-1B Registration Opens on March 1 - February 14, 2020
• Change Your Two-Factor Authentication on myUSCIS Account
• Create a myUSCIS Account with This Step-by-Step Guide

Government Resources

• USCIS Final Rule Creating a Wage-Based Selection Process for H-1Bs (86 FR 1676, 1/8/21)
  
  • USCIS Press Release: USCIS Modifies H-1B Selection Process to Prioritize Wages – January 7, 2021
• USCIS Notice of Proposed Rulemaking Creating Wage-Based Selection Process for H-1Bs (85 FR 69236, 11/2/20)
• ICE Releases Broadcast Message on F-1 Student Cap-Gap Extension and the Revised H-1B Registration Process – June 8, 2020
• USCIS Provides FAQs on the H-1B Electronic Registration Process - May 26, 2020
• USCIS Announces Delay in Data Entry and Receipt Notice Generation for FY2021 H-1B Cap-Subject Petitions – April 13, 2020
• USCIS Announces FY2021 H-1B Cap-Subject Petitions May Be Filed as of April 1 – April 1, 2020
• USCIS Announces Completion of H-1B Initial Electronic Registration Selection Process – March 27, 2020
• USCIS Announces Temporary Suspension of Premium Processing for FY2021 Cap-Subject Petitions – March 16, 2020
• USCIS Announces That Initial H-1B Registration Period Will Open at Noon Eastern on March 1 – February 28, 2020
• USCIS Announces H-1B Registration Account Creation - February 21, 2020
• USCIS Suspends Use of Pre-Paid Mailers for FY2021 Cap-Subject H-1B Petitions – February 14, 2020
• USCIS Provides Presentation from Webinar on H-1B Registration for Attorneys and Representatives – February 6, 2020
• USCIS Provides Presentation from Webinar on H-1B Registration for Registrants – February 6, 2020
• H-1B Registration Tool Screen Shots – December 19, 2019
• USCIS Notice of Implementation of H-1B Registration Process for FY2021 (85 FR 1176, 1/9/20)
• USCIS Announces Implementation of H-1B Electronic Registration Process for FY2021 Cap Season - December 6, 2019
• DHS Final Rule Requiring $10 Fee for H-1B Registration (84 FR 60307, 11/8/19)
  • USCIS Press Release: USCIS Implements $10 Fee for H-1B Visa Registration – November 7, 2019
  • Screenshots of the Electronic H-1B Registration Tool - November 7, 2019
  • Excel Spreadsheet Containing Questions for Electronic H-1B Registration Tool - November 7, 2019
• USCIS 30-Day Extension of Comment Period on Proposed Revisions to the Electronic H-1B Registration Tool (84 FR 54159, 10/9/19)
• USCIS Issues Final Rule Governing Cap-Subject H-1B Petitions (84 FR 888, 1/31/19)
• USCIS Proposed Rule Adding a Registration Requirement for Cap-Subject H-1B Petitions (83 FR 62406, 12/3/18)

AILA Comments and Communications with USCIS

• AILA Provides Feedback to USCIS on FY2021 H-1B Electronic Registration Process and Recommendations for Improvements - December 29, 2020
• AILA Sends Letter to USCIS Raising Questions and Concerns on H-1B Registration Tool – January 17, 2020
• AILA Submits Additional Comments on H-1B Electronic Registration Tool - November 8, 2019
• AILA Submits Comment to H-1B Registration Fee Proposed Rule – October 4, 2019
• USCIS Provides Response Regarding H-1B Registration Tool – September 30, 2019
• AILA Submits Comments to USCIS on Proposed Revisions to the H-1B Registration Tool – August 26, 2019
• Sign-On Letter to USCIS on H-1B Electronic Registration Tool – August 16, 2019
• AILA Submits Comments on USCIS Proposed H-1B Regulation – January 2, 2019

Media Reports

• Forbes: USCIS Mistakenly Denied Over 100 H-1B Visa Registrations – April 2, 2020
• American Immigration Council’s Immigration Impact: The H-1B Registration Period Has Ended. How Did the New System Handle It? – March 26, 2020
• American Immigration Council's Immigration Impact: H-1B Registration Is Almost Here: What We Do and Don’t Know About USCIS’ New Process - February 26, 2020
• American Immigration Council’s Immigration Impact: What We Know About USCIS’ New H-1B Cap Registration System – January 16, 2020
• San Francisco Chronicle: Big changes coming to H-1B visa lottery – December 19, 2019
• American Immigration Council’s Immigration Impact: USCIS Announces Major Change to H-1B ‘Cap’ Filing With Electronic Registration – December 12, 2019
• Bloomberg: Upcoming H-1B Registration Process Still Fraught With Concerns - December 10, 2019
• Wall Street Journal (Subscription Required): U.S. Revamps Process for H-1B Visa Application - December 6, 2019
• Mercury News: H-1B: New Registration System for Applications Coming Next Year, or Maybe Not – October 4, 2019
• Bloomberg: Next H-1B Lottery Likely to Feature Electronic Preregistration – October 4, 2019
• Forbes: USCIS May Court Disaster with Untested H-1B Visa Registration System – August 19, 2019
• Law360 (Subscription Required): Immigration Attys Seeks Answers on New H-1B Registration – August 19, 2019

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Cite as AILA Doc. No. 19102407.