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Employer Tips for the Fiscal Year 2022 H-1B Cap Registration Process

U.S. Citizenship and Immigration Services (“USCIS”) introduced a new H-1B cap process for fiscal year (FY) 2021.  In its webinars conducted on February 23, 2021 and February 24, 2021, USCIS confirmed that the H-1B cap process for FY 2022 will be substantially the same as the process introduced for FY 2021, and provided additional insight on the H-1B registration tool and electronic registration process.  The electronic registration will be open on March 9, 2021 at noon (ET), and there are a number of important issues to consider, including but not limited to the following:

  1. H-1B Registrant Accounts
  • As of March 2, 2021, petitioners may create H-1B registrant accounts through the myUSCIS portal.
  • When creating an H-1B registrant account in the myUSCIS portal, the petitioner must select the option “I am an H-1B registrant.”
  • Registrants will not provide company information when setting up their myUSCIS accounts. The company information will be provided starting on March 9, 2021 when the H-1B registration portal opens.
  • For detailed instructions on creating an H-1B registrant account, please refer to: https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process.
  1. H-1B Representative Accounts
  • Representatives have been able to create a myUSCIS account prior to March 2, 2021 because representatives will use the same kind of account already available to them.
  • Attorneys may submit registrations on behalf of a client as long as the client has a myUSCIS “registrant” account and a Form G-28 is submitted for each client. Submitting the G-28 for the electronic registration involves a two-factor authorization process.  After the attorney prepares the registration and G-28 electronically, a one-time passcode will be generated (and is valid for 30 days).  The attorney must share the electronic passcode with the client, who must log into their myUSCIS account and select “Enter Representative Passcode” to review and accept the G-28.
  • After accepting the G-28, the client will be instructed to review the registration information and either accept or decline the registration. Once the registration is accepted, the registrant’s authorized signatory will provide their electronic signature by typing their full legal name into a designated box.  After the registrant electronically confirms the registration information and G-28 information, the attorney may pay the registration fee and submit the registration.
  • At the time of submitting the electronic registration, the authorized signatory will be required to certify, under penalty of perjury: 1) that they have reviewed the registration and that all of the information contained in the registration is complete, true and correct; and 2) that the authorized signatory, or the organization on whose behalf the registration is being submitted, intends to file an H-1B on behalf of the beneficiary named in the registration if the beneficiary is selected.
  • One attorney or accredited representative should be able to manage one or more clients under a single account.
  • Only one user should be designated per attorney account.
  1. Registration Preparation and Filing
  • The initial registration period will be open from March 9, 2021 at noon (ET) until March 25, 2021 at noon (ET).
  • If USCIS determines it has received more than enough registrations to meet the numerical cap limitations, all registrations submitted during the initial registration period will be included in the lottery (regardless of whether a registration was submitted on March 9, 2021 or March 25, 2021). It is recommended, however, not to wait until the last minute to submit a registration.
  • Both representatives and registrants must wait until March 9, 2021 to draft and submit H-1B registrations.
  • USCIS will permit users to review and edit draft registrations of beneficiaries before the registration is submitted.
  • USCIS will not permit a user to edit a registration once it has been submitted. However, USCIS will permit a user to delete a registration of an individual beneficiary (by clicking the “delete” button next to the beneficiary’s name) without impacting the registrations of other beneficiaries in the registration batch.
  • There is no limit on the total number of beneficiaries that a petitioner may register. However, a single registration can only include up to 250 beneficiaries.  Additional beneficiaries can be added to subsequent registrations for the same petitioner.
  • Upon submission of the registration and payment of the registration fee, a petitioner will be able to see a list of all beneficiaries they have registered. Each beneficiary will be assigned a 19-digit confirmation number.
  • Petitioners will have the option to delete a specific beneficiary from the registration (if needed) by clicking “delete”, and this will not impact the other beneficiaries that the petitioner has registered.
  1. Registration Selection Process
  • USCIS will conduct the initial selection process after the initial registration period ends. USCIS intends to notify registrants and representatives with selected registrations no later than March 31, 2021.  Registrants and representatives may select their preferred method of notification when setting up their myUSCIS account.
  • Any registrant or representative who submitted a selected registration will receive a notification from USCIS via email or text message (depending on the method of communication selected at the time of creating the myUSCIS account) stating: 1) that there is activity in their myUSCIS account; and 2) that they will need to log into their myUSCIS account to see details.
  • A registrant or representative’s myUSCIS account will show one of the following statuses for each registered beneficiary:
    • Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.
    • Submitted: A registration status may continue to show “Submitted” after the initial selection process has been completed. “Submitted” registrations will remain in consideration for selection until the end of the fiscal year (in the event that USCIS determines that it needs to increase the number of registrations projected to meet the H-1B regular cap or the advanced degree exemption allocation, USCIS will select from registrations held in reserve to meet the H-1B regular cap or advanced degree exemption allocation).  At the end of the fiscal year, all registration statuses will indicate either “Selected”, “Not Selected” or “Denied”.
    • Selected: The registration has been selected to file a FY 2022 H-1B cap-subject petition.
    • Not Selected: The registration has not been selected to file a FY 2022 cap-subject petition.
    • Denied: USCIS will indicate “Denied” in situations where the same registrant or representative submitted more than one registration on the beneficiary’s behalf for the same fiscal year. All registrations the registrant or representative submitted on behalf of the same beneficiary for the same fiscal year will be deemed invalid.
  1. H-1B Petition Filing
  • April 1, 2021 is the earliest date on which selected registrants should be able to begin filing their FY 2022 H-1B cap-subject petitions.
  • Petitioners will have a 90-day period to file an H-1B petition for the selected beneficiary. As long as a petition is properly filed during the filing period, it will be adjudicated.
  • USCIS will provide a “selection notice” that will be available in the registrant or representative’s myUSCIS account. The selection notice will identify the 90-day filing period and the Service Center where the petitioner must file the H-1B petition.  The petitioner must include a copy of the selection notice with the H-1B filing.
  • USCIS has not yet announced whether premium processing will be available for FY 2022 H-1B cap-subject petitions.
  1. Registration Account Issues
  • Some users have reported issues accessing their myUSCIS accounts, including: 1) seeing a blank screen when logging into their myUSCIS account; and/or 2) not being able to access any features of their account such as their “My Clients” list.
  • Some of these reports are from users with Safari or Google Chrome as their browser, and some users have reported being able to resolve the issues by using a different browser such as Firefox, or by clearing/deleting cookies before logging into their myUSCIS account.
  • Individuals encountering technical issues during the H-1B registration process should call the USCIS Contact Center (1-800-375-5283). There will not be a separate phone line dedicated to the H-1B registration process.

The foregoing is only a list of some of the most significant and recent updates provided by USCIS with respect to the FY 2022 H-1B electronic registration process.  For more updates, and for detailed instructions on creating an H-1B registrant account through the myUSCIS portal, you should refer to the above-referenced resources at www.uscis.gov.

 

About the Author:

Ian Nesteruk is a Member in the firm’s Phoenix office.  He practices in the area of immigration law, representing corporate and individual clients in connection with non-immigrant employment-based visas, immigrant employment-based visas, and family-based immigration.  He has experience in a range of non-immigrant employment-based classifications including H, TN, E, O and P visas.  His immigrant employment-based experience is primarily in the technology industry and includes recruitment-based cases, outstanding researcher and extraordinary ability petitions, and national interest waivers. You may reach Ian at 602-889-5358 or INesteruk@dickinsonwright.com and you may visit his bio here.