Update on Implementation of the H-1B Registration Fee for the Next Cap Season

November 2019

U.S. Citizenship and Immigration Services (USCIS) recently announced that it will require a $10 nonrefundable fee for each H-1B cap-subject registration, once it implements the electronic registration system. The final rule, “Registration Fee Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” will be effective on December 9, 2019. The H-1B Program allows companies in the US to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

US employers seeking to file an H-1B cap-subject petition for a foreign national for one of the 65,000 Regular H-1B cap slots or one of the 20,000 Advance Degree H-1B cap slots will be required to register each foreign national with the USCIS electronic registration system during a designated registration period (not yet established), unless the requirement is suspended, instead of filing a full petition at the outset. Notably, the testing of this new system is still pending completion. USCIS will have a computer randomly select from those registrations. Only employers that have their registration(s) selected will be eligible to file a complete H-1B cap-subject petition for the Fiscal Year 2021 cap season (October 1, 2020 to September 30, 2021). As in past H-1B cap seasons, due to oversubscription, it is anticipated that all slots will be selected in a lottery process for FY 2021, as demand for H-1B visas has exceeded the available annual quota.

This registration fee is part of USCIS efforts to modernize and more efficiently process applications to live or work in the US. For additional background information about this proposed H-1B registration system, please view our prior alert here. Once USCIS implements the system and requires registration, the final rule affirms that USCIS will not consider an H-1B cap-subject petition to be properly filed unless it is based on a valid registration selection for the applicable fiscal year. Moreover, USCIS will reject or deny H-1B cap-subject petitions that are not properly filed. The final rule states that USCIS will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made. Other highlights of this new system are

  • One registration per foreign national. US employers may submit only one registration per foreign national. Submitting more than one registration for a foreign national will invalidate all registrations for that person.
  • Ninety-day filing period. If a registration is selected in the lottery, the US employer has at least 90 days to file the complete H-1B cap-subject petition. If the H-1B cap-subject petition is not filed within the prescribed period, the petition will be denied or rejected.
  • Minimum 14-day registration period.The final rule requires that the electronic registration period be at least 14 calendar days. Since an H-1B petition may be filed no more than six months prior to the start date requested, and the start date for an H-1B cap petition may be no earlier than October 1, 2019, this implies that the latest date of the start of the registration period would be 14 days prior to April 1 of each fiscal year.

This proposed regulation is aimed to further the “Buy American and Hire American” Executive Order issued April 18, 2017 by President Trump. We urge all employers interested in filing a cap-subject H-1B petition in the next H-1B cap filing season to contact one of our immigration attorneys for strategic advice and counsel. For more information on this or other immigration matters, our team of immigration attorneys remains available.