The U.S. Department of Homeland Security on November 8th 2019 published a final rule to establish an electronic registration program for H-1B petitions for FY 2020. This new H-1B registration will require a $10.00 registration fee for the cases that will have to be filed by the April 1st, 2020 cap season deadline.

In the interest of expediency, we understand that one of the main goals of the new regulation is to conduct the H-1B lottery before accepting petitions so that prospective H-1B employers know (in advance) if the case will be selected in the lottery before submitting a full and complete H-1B filing to the USCIS.

Another one of the major changes that was implemented was to reverse the order as to how the lottery was to be conducted with an eye toward increasing the number of U.S. Masters degree holders that would be able to obtain an H-1B number.

On November 4th, 2019, the Director of USCIS, Ken Cuccinelli, stated that he has a “fairly high degree of certainty” that USCIS will be ready to implement the tool for the upcoming H-1B 2020 cap season, and that he expected that the USCIS will make a formal announcement by the end of the year.

To date, we await a formal announcement about the implementation of the new H-1B electronic registration process. Stakeholders have been told that the H-1B electronic registration process is still undergoing beta testing and is not yet active.

While USCIS may again suspend implementation of the H-1B registration program for the upcoming 2020 cap season, our immigration law offices are advising employers to proceed under the assumption that the new H-1B registration program will be fully functional and fully implemented for the upcoming cap season.

This Q&A below is adapted from information available about the H-1B program and has been modified to provide prospective H-1B employers and H-1B employees with guidance about how to prepare for the registration process if it is actually implemented for the April 2020 H-1B nonimmigrant Visa Petition cap season.

Question: What is H-1B cap registration?

Answer: It is a USCIS system to monitor the number of H-1B cap petitions submitted and to conduct the H-1B lottery before the petition is submitted.

Question: Who is covered by this new electronic H-1B registration rule?

Answer: The registration is only for prospective cap-subject petitions (i.e. not for cap-exempt employers such as universities or qualified research institutions nor, employees who have been already counted against the cap).

Question: When will the H-1B nonimmigrant Visa registration period begin?

Answer: The USCIS has stated that it will announce in the Federal Register when it plans to institute registration and then, once it does, the process will “roll out” as follows:

1. The initial registration period will be announced at least 30 days in advance and there will be stakeholder outreach;

2. Initial registration period will begin at least 14 days before the first day of petition filing (April 1) and will last at least 14 calendar days;

3. If selected, a prospective H-1B employer has at least 90 days to file H-1B petition; and

4. USCIS may re-open registration at anytime (there would be no notice required).

Question: What is the government’s filing fee to register?

Answer: There will be a $10.00 non-refundable government filing fee to electronically file the H-1B nonimmigrant work visa.

Question: What information will be required by prospective H-1B employers and prospective H-1B employees to register for the new electronic H-1B registration program?

Answer: Presently, we are given to understand, that the following information will be required as part of the new H-1B electronic registration program:

1. Full name