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.

H1B Quota
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:

• Of the 85,000 quota, there is a total of 20,000 set aside for advanced degree graduates of U.S. universities (e.g. individuals with a degree above a bachelor’s degree, such as a master’s degree, Ph.D., and more). The remaining 65,000 is the “regular” quota, which is available to anyone with at least a four-year bachelor’s degree or the foreign equivalent of at least a four-year bachelor’s degree.
• In performing the lottery, the USCIS will first select 65,000 petitions from the “regular” quota. This selection process will be drawn from all petitions filed (that is, bachelor’s degree petitions, U.S. advanced degree petitions, foreign-equivalent degree petitions, and more). Once the regular quota of 65,000 petitions has been exhausted, the USCIS will then segregate all remaining U.S. advanced degree petitions, and will select 20,000 petitions for the U.S. advanced degree quota. This gives individuals with a U.S. advanced degree two chances in the lottery.
• The 20,000 “advanced degree” quota is only available for individuals who possess an advanced degree from a U.S. university at the time of filing the H-1B petition. However, the student does not have to possess the advanced degree at the time of filing the pre-registration. If a student is in an advanced degree program, but has not yet completed the program at the time of the pre-registration filing, the employer can proceed to pre-register for the advanced degree quota. The advanced degree must be completed by the time of filing the H-1B petition.
• For undergraduate students who do not yet have a degree by the time of the pre-registration (March 1 – 20), but will have a degree by the time of filing the H-1B petition, an employer can file a pre-registration for the “regular” quota of 65,000. The degree must be completed by the time of filing the H-1B petition.
• A student can file pre-registrations and H-1B petitions through multiple employers, but cannot file multiple pre-registrations or H-1B petitions with the same employer.
• Students who have been working using Optional Practical Training (OPT) have, in the past, been able to extend the OPT upon filing an H-1B petition under a process called “cap gap extension” of OPT. This process is still in place. To qualify for cap gap extension of OPT, the H-1B petition must be filed before the OPT expires. Students should alert their immigration adviser of the expiration of their OPT to ensure that the H-1B petition is prioritized to file before the OPT expires.

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.