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H-1B Registration Tool – Changes are Comin’ to the H1B Lottery…

on Thursday, 2 January 2020 in Labor & Employment Law Update: Sarah M. Huyck, Editor

In December, the Department of Homeland Security (“DHS”) announced that it is ready to implement recent proposed changes to the H-1B lottery, including:  (1) a requirement for employers seeking to file H-1B cap-subject petitions to first electronically register with the U.S. Citizenship and Immigration Services (“USCIS”) during a specified registration period, and (2) the institution of a $10 non-refundable fee for such registration.  Both of these changes will be in place for the fiscal year 2021 H-1B cap selection process, which will now open March 1, 2020, instead of April 1st, but will only last until March 20th.

After reviewing what little information is available about the registration process, the lottery selection process, and the filing of a petition and supporting documentation following selection of an employer’s beneficiary, we recommend those who wish to take a chance on a visa under this year’s H-1B cap communicate with us by the end of January.  We will continue to request full information and documentation on the position, the beneficiary, and the specifics of the employment arrangement as we have in the past and will analyze this information for possible H-1B visa eligibility and review all supporting documentation available for a petition filing if the registration is selected.  The registration process will require an employer to state that the registration is a non-frivolous filing and that the employer will, in fact, file a petition if selected.  A pattern of failing to file petitions after lottery selection could result in an employer being banned from future registration processes and future H-1B visas. 

As a result, we intend to review the proposed employment for eligibility and readiness for a petition filing before a registration is submitted.  This will also mean that there will be very little lead time when notification of selection is issued – a factor that will be greatly appreciated by the employee, who may be looking at expiring employment authorization and an expiring visa status that can only be extended by a timely-filed H-1B petition.  When the lottery is completed in early April, we will immediately notify those selected and begin the filing process (including form preparation, etc.) at that time. 

Ultimately, our goal is to ensure that our clients are in the best position possible to react to a lottery selection as quickly as possible, short of actually preparing the filing, while mitigating the risk to our clients of a claim of frivolous filings by DHS or misrepresentation by a disgruntled employee. 

Amy Erlbacher-Anderson

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500

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