Significant Changes to Fiscal Year 2021 Cap-Subject H-1B Program

U.S. Citizenship and Immigration Services (“USCIS”) has implemented a new electronic registration system for the Fiscal Year 2021 cap-subject H-1B program. 

What is Changing?

• If an employee has not been counted against the H-1B cap and seeks to change status to H-1B, an employer must file a cap-subject H-1B petition on the employee’s behalf with USCIS. Historically, employers filed cap-subject H-1B petitions beginning on April 1.  USCIS accepted these petitions during the first five business days of April.  Once the filing window closed, USCIS conducted a random lottery to determine which petitions were accepted for processing.  Petitions that were not accepted for processing were returned to the employer.
• Under the new system, employers will be required to electronically register each employee they plan to enter in the lottery and pay a $10 registration fee. The registration requires basic information about the employer, employee and job opportunity.  USCIS will accept electronic registrations from March 1 through March 20, 2020.  USCIS will conduct the random lottery based on the electronic registrations received during the registration window.  Employers will be able to file H-1B petitions only for those registrations that are chosen in the lottery.

What is the Timing?

• USCIS will accept electronic registrations from March 1 through March 20, 2020. Employers will have at least 90 days to file full cap-subject H-1B petitions for selected registrations.

How Does This Impact Employers?

• The new registration system is anticipated to result in significant cost savings for employers. By conducting the lottery first, employers will have the certainty of knowing that an employee was chosen in the lottery before investing the additional time and costs in preparing an H-1B petition. 

• It is possible that due to the new streamlined electronic registration system there will a higher volume of submissions. This may decrease the odds of a registration being chosen in the lottery.
• Employers will need to decide earlier if they plan to submit an electronic registration on behalf of an employee, given that the registration window closes on March 20, 2020. If employers do not act during this window, they will miss the lottery altogether.

Honigman’s experienced Business Immigration attorneys are available to assist employers with navigating the new changes to the cap-subject H-1B program and preparing and filing electronic registrations on behalf of their employees.  Please contact Meghan Covino, Carol Friend or Sarah Iyer with questions or to learn more about our services.