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H-1B Cap Update: Decision on H-1B Cap Registration Expected This Year, Acting USCIS Director Says

Speaking at the SHRM Global Mobility and Immigration Symposium today, Acting USCIS Director Kenneth T. Cuccinelli said that his agency continues to test an online H-1B cap registration tool and plans to notify stakeholders before the end of this year whether to implement the system for the FY 2021 cap season.

Acting Director Cuccinelli’s remarks, made in an interview with Austin T. Fragomen, Jr., were the most definitive indications of the agency’s plans for the long-promised cap registration system. In late September, Mr. Cuccinelli told the American Immigration Lawyers Association and other business immigration advocacy groups that the agency intended to implement the system early next year, provided that there were no technology issues to prevent it from doing so. At that time, he did not provide details on the agency’s decision and implementation timeline. Testing of the system is ongoing and involves participants from the business immigration community, the Acting Director said.

H-1B cap registration in brief

Under the H-1B cap registration system, employers seeking to file H-1B cap cases would first be required to register online in order to enter the H-1B lottery. Employers would then be permitted to file full H-1B petitions only for registrations that are selected in the H-1B lottery, which they would file with USCIS during a period of at least 90 days. A regulation announcing the new system was finalized in early 2019 but implementation was postponed so that the system could be developed and tested.

A $10 registration fee would be required for each H-1B cap registration at the time of submission.  Acting Director Cuccinelli indicated that a rule finalizing the registration fee would be published in the coming days.

What this means for employers

It is still not certain whether USCIS will implement H-1B cap registration during the FY 2021 season, which begins in early 2020, but Acting Director Cuccinelli’s comments provide more clarity on the agency’s plans for the system.

Because USCIS could elect to postpone implementation once again, employers should prepare for the possibility that they will need to file complete H-1B petitions for all foreign nationals they intend to sponsor for the H-1B cap, as in past years.

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