Many employers who wish to sponsor qualifying foreign nationals for skilled professional positions in the U.S. by applying for an H-1B non-immigrant visa are subject to what is referred to as the H-1B “Cap”. USCIS limits the number of H-1B visas for “Cap subject” employers to a cumulative total of 85,000 per year.
As demand for H-1B visas continually exceeds the 85,000 cap, USCIS uses a blind lottery to determine which petitions will be processed.
In an attempt to improve the efficiency of the application process, this year USCIS is planning to implement a new H-1B registration system which will allow employers to know if their petition has been selected for review BEFORE they are required to submit filing fees and the full petition.
However, there are potentially significant consequences if an employer submits a registration, but then fails to follow through with an H-1B petition if selected. Therefore, our recommendation is that employers work with their attorneys to ensure prior to registration that the position and the foreign national qualify for consideration for an H-1B visa and that the employer is able to pay the required wage for the position. It is also important to note that employers are prohibited from submitting multiple, or duplicative registrations for the same foreign national to improve their odds of being chosen.
While we are still awaiting final details regarding the process, from the information currently available, our understanding is that the new registration system will work as follows:
- Between March 1 and March 20 we will register our employer clients that wish to participate in the H-1B lottery, and provide details regarding the employee(s) to be included in the lottery. USCIS will charge a $10 per employee fee for this registration.
- After registration closes, the government will run the lottery, and notify our office electronically by April 1 of which cases have been selected to submit full H1B petitions.
- Within 90 days of April 1, we will have to submit a full H-1B petition for any case selected in the lottery. (As noted above, failure to submit a petition after selection does carry potential repercussions to the business, so we want to fully vet any petition prior to registration.)
There remains the possibility that there will be lawsuits and/or implementation problems that cause the new system to be unworkable for one reason or another. With this uncertainty, employers would be well advised to prepare the full petition and have it ready for April 1 as if the “old” system is still in effect (as there is the possibility it may continue to be). This will ensure that – regardless of what ends up happening with the implementation of the new registration system, employers will not miss out on the H-1B lottery this year.