February 10, 2020 | By Mark Rhoads
TAGS: immigration, international students, spotlight
Spotlight for Recruiting Professionals
Beginning on March 1, 2020, the United States Citizenship and Immigration Services (“USCIS”) will implement a new “pre-registration” system for employers seeking to file H-1B petitions for employees. This article will provide guidance regarding this new process.
The H-1B is a popular work visa category, allowing U.S. employers to hire individuals who possess at least a four-year bachelor’s degree, or the foreign equivalent, in professional positions requiring a college degree. Although the H-1B is popular, Congress places a strict numerical quota (or “cap”) on the number of H-1B approvals it will issue each year. The quota is 85,000 new H-1Bs (20,000 reserved for individuals who have an advanced degree from a U.S. college or university, and 65,000 for the “regular” quota).
The quota year runs from October 1 to September 30. In the current quota year that began on October 1, 2019, the quota is already exhausted; in fact, all H-1Bs were taken on October 1, the first day they were released. This is because employers were permitted to pre-file H1-B petitions on April 1, 2019, six months in advance of October 1.
As happens every year, on the April 1 filing date, the USCIS received far more H-1B petitions (more than 200,000) than the 85,000 quota. As a result, the USCIS performed a random lottery to select 85,000 cases to process. Petitions not selected in this random lottery were simply returned. Petitions selected in the lottery were processed to determine if they qualify for H-1B (i.e. does the candidate have at least a U.S. bachelor’s degree or the foreign equivalent in a specialized area of study, and does the job require the specialized degree in order to perform the job).
Old Lottery Process
Because the quota is now exhausted, no new H-1Bs are available until October 1, 2020. In order to secure an H-1B in the October 1, 2020 quota, employers must pre-file for the H-1B lottery. In previous years, employers were required to file fully prepared H-1B petitions including government filing fees ($2,460 for employers with more than 25 employees; or $1,710 for employers with 25 or fewer employees). Petitions could be filed beginning April 1, six months in advance of the October 1 quota release.
As noted above, the USCIS would receive far more than 85,000 petitions on the April 1 filing date each year. It would then randomly select 85,000 cases to process and return the rest.
New Pre-Registration Process
This year, the government is implementing a new “pre-registration” process, beginning March 1, 2020. Under this new process, employers wishing to file an H-1B petition must first “pre-register” by filing an electronic application, providing certain basic information about each sponsored employee. Pre-registration applications can be submitted from March 1 – 20.
As in years past, the USCIS will likely receive many more “pre-registrations” during this pre-registration period than there are quota numbers available. Assuming this is the case, the USCIS will perform a random lottery and will select 85,000 cases to process. The lottery selection process should be completed quickly (perhaps in a matter of days), although because this is the first year of this new process, no one knows for certain how long the selection process will take.
Cases selected for processing will be notified, and the employer will have 90 days to submit a full H-1B petition to prove that the candidate qualifies for H-1B.
The following are some tips for participating in the H-1B pre-registration and lottery process:
Employers should contact an immigration attorney as soon as possible to start the process.
Other visa options may be available for candidates not selected in the lottery, but they are limited. Employers should consult with qualified immigration counsel to explore options.
Mark B. Rhoads is an attorney in the Immigration Practice Group with McCandlish Holton, PC.