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H-1B Registration Revisited – Top 10 Lessons Learned for 2021

For many immigration practitioners and employers, H-1B cap season approaches like a tidal wave – initially calm, almost routine, but also threatening and consuming. Many potential applicants, few spots, and an unforgiving timeline for submission. And for some foreign workers, it’s the only viable path to remaining in this country.

But enough of the doom and gloom. For we actually have some good news this year (a rarity in immigration, for sure). DHS has postponed the H-1B Selection final rule, a Trump-era initiative that would have prioritized H-1B registrations for selection based on the proffered wage – effectively closing the H-1B door on many international students who are just starting out in their careers and have much to offer (and contribute).

According to the recent DHS announcement, the agency is delaying the effective date to Dec. 31, 2021 in order to provide more time for training staff and performing public outreach, as well as to give stakeholders time to adjust to the new rule. But for this year’s H-1B cap season, the H-1B registration process will remain largely unchanged.

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Which perhaps is a good thing? If we think back to last year (painful as that is), we’ll recall the inaugural launch of the H-1B registration step – a new bureaucratic process that was approached with a high degree of uncertainty and skepticism, particularly on the technology front. And for sure, the H-1B registration process in 2020 had its share of bumps in the road.

But overall, most practitioners and employers found the H-1B registration process relatively smooth and easy to navigate, all things considered. However, as with any immigration process, there are a few traps for the unwary – particularly those who are embarking on their first H-1B cap expedition.

After speaking with a few practitioners, we’ve come up with our top 10 things to know about the H-1B registration process – short, but insightful tips for navigating this year’s upcoming H-1B cap season. And at the end, we provide a link to an H-1B cap toolkit that provides best practices for managing your H-1B cap case load using technology. Let’s begin!

(1) Keep track of the H-1B registration window 

The USCIS announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap season will open at noon Eastern on March 9, 2021 and run through noon Eastern on March 25, 2021. During this period, prospective petitioners and representatives will be able to fill out petitioner and beneficiary information and submit their registrations through the online portal. If USCIS receives enough registrations by March 25, they will randomly select registrations and send notifications via users’ myUSCIS online accounts. They intend to notify account holders by March 31.

(2) For attorneys – make sure your employer clients choose the right type of account

Employers seeking to file H-1B cap-subject petitions must first electronically register with myUSCIS – a process that immigration practitioners will typically explain and facilitate. One of the earliest steps in the employer registration process is to choose a type of account.

(1) I am an applicant, petitioner, or requestor,

(2) I am a legal representative or

(3) I am an H-1B registrant.

Last year, some employers inadvertently selected “I am an applicant, petitioner, or requestor” (which does not permit H-1B registrations) rather than “I am an H-1B registrant” – which is the correct designation. To rectify the error, employers were instructed to create a new account (a time-consuming process), and were forced to use a different email address (since the system will not allow 2 accounts with the same address).

(3) An email address in the USCIS account can only be used once

As mentioned above, once an email address is used in connection with an employer account, the address cannot be used for any other account. So if you have a large corporate client that wishes to create separate employer accounts (for different subsidiaries), each account will need to have a different associated email address.

(4) Enable your staff to manage the H-1B registration process

Attorneys preparing H-1B cap petitions on behalf of employer clients will often delegate the H-1B registration step to one or more paralegals, junior attorneys, or other legal support staff in order to efficiently manage the case. Unfortunately, the USCIS portal does not allow for the creation of attorney subaccounts, and their “Terms of Use” prohibits the sharing of an account with others.

Nevertheless, practitioners may wish to establish defined (and controlled) processes for enabling staff to use the USCIS portal to enter-in the registration information for eventual attorney review and submission. As part of this process, practitioners must remember that the login for myUSCIS uses two-factor authentication – meaning, the paralegal (for example) will need access to the registrant’s email address or phone number in order to retrieve an access code for each login.  Some offices utilize a shared email address (or alias) to facilitate this process. But again, it’s important to have checks and balances in place.

(5) Employers represented by counsel have a two-step process for approving the registration

During the first go-round with H-1B registration last year, many employers (represented by counsel) didn’t realize that there is actually a two-step process for reviewing and submitting the registration list – first, they accept their counsel’s electronic G-28 form, and then they can review and sign-off on the H-1B registration list.

Practitioners should consider providing their clients with a detailed walk-through of the G-28/registration process that illustrates how to review, approve, and sign an H-1B cap registration prepared by the attorney.

(6) Review your G-28s carefully before sending the passcode to the client

Once the employer has accepted the G-28, practitioners will be unable to edit the data if they later discover an error or some other typo on the form. The only recourse will be to delete the G-28, re-create the form, and send it back to the client (through the portal) for reauthentication.

(7) Double-check the payment information before submitting

After the registration has been submitted, practitioners are redirected to pay.gov, where they can select the payment method (ACH, credit, or debit) for the H-1B registration. While pay.gov will supposedly inform you of payment errors on the spot, some practitioners did not learn of payment problems last year until much later – after the registration period had closed.

(8) Be careful of duplicate submissions 

Under the H-1B registration rule, if a specific petitioner submits more than one registration per beneficiary in the same fiscal year, all registrations filed by that petitioner relating to that beneficiary for that fiscal year will be considered invalid – a dire consequence for sure. By some estimates, there were over 900 H-1B registrations invalidated last year due to duplicate submissions.

According to the USCIS, most duplicates resulted from the employer (registrant) filing their own registration separately through the portal, in addition to a submission by the registrant’s attorney for the same beneficiary (creating a duplicate). In other cases, the USCIS discovered that the representative had withdrawn a G-28 from an initial submission but failed to delete the associated H-1B registration. Then, an entirely separate registration was submitted, creating a duplicate.

(9) Keep up-to-date with the latest changes

The USCIS is holding an H-1B registration webinar for attorneys and representatives on Tuesday, Feb. 23, from 2 to 3:30 p.m. Eastern. During this webinar, USCIS will provide an instructional overview of the H-1B electronic registration process in the myUSCIS portal for attorneys and representatives in particular. They will then hold another webinar specifically tailored for registrants on Wednesday, Feb. 24.

To register, you can visit this page.

(10) Use technology to keep track of your H-1B registrations

Last but not least, LawLogix has prepared a specialized H-1B Cap toolkit which contains tips and best practices for managing H-1B cap cases with a special focus on the H-1B registration process. You can access this toolkit by completing this form here.

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.