USCIS Issues Final Rule on H-1B Cap Lottery Registration Fee

USCIS has announced a final rule that implements a $10 non-refundable registration fee for employers seeking to submit an application for an H-1B worker under the proposed new USCIS H-1B registration system, which when implemented, will significantly change the H-1B cap lottery selection process.

Historically, employers seeking to file H-1B petitions for specialty occupation employees seeking H-1B status for the first time were required to file an H-1B petition during a five-day period starting on April 1. Since USCIS typically receives a number of H-1B petitions that vastly exceeds the numbers of new H-1B visas available under the statutory annual quota (called the H-1B cap), USCIS would conduct a random lottery selection process to determine which H-1B petitions would be selected for processing. Last year, for example, USCIS received over 190,000 H-1B petitions for 85,000 available H-1B visas.

Under the new H-1B registration system proposed by USCIS, employers will now be required to pre-register and provided a limited set of information about an employee it intends to sponsor for H-1B status and then USCIS will perform a random selection process on all registrations submitted and then for those registrations selected, the employer will be able to proceed with filing a full and complete H-1B petition for its employee.

USCIS officials have stated previously that they intend to implement the registration process for the fiscal year 2021 H-1B cap selection process (which begins on April 1, 2020), pending completed testing of the new registration system software. However, the possibility remains that the new registration system could be suspended for the upcoming H-1B cap filing period if the system software is not ready to support the hundreds of thousands of registrations that will be filed. USCIS says they will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made, and they claim they will provide ample notice to the public in advance of implementing the registration requirement. However, it should be noted that under the current administration, USCIS has had a track record of providing minimal advance notice (and sometimes no notice at all) of major immigration policy changes.

Ellis Porter will continue to monitor this issue closely and pass along any updates on the proposed new H-1B cap registration program as soon as they become available.