On Nov 14 2019

Uncertainty Ahead: Filing H-1B Cap Petitions Might be Very Different in 2020

H-1B cap filing season, already a high-stress time of year for sponsoring companies (and their immigration counsel), will likely bring major changes impacting businesses that rely on the visa program to hire skilled and educated foreign nationals. U.S. Citizenship and Immigration Services (USCIS), the government agency that oversees the H-1B program, recently announced plans to change this year’s H-1B lottery process by requiring employers to electronically pre-register candidates ahead the H-1B filing period, which begins April 1, 2020. Employers will also pay a new $10 fee per registered candidate. As the registration system is still pending release (and no anticipated release date has been circulated), many employers, attorneys, and related stakeholders are bracing for updates.

By way of background, the H-1B visa program allows employers to petition for highly educated foreign nationals to work in ‘specialty occupations,’ an employment category closely associated with science, technology, engineering, and mathematics (STEM) fields, but not limited to them. The number of H-1B visas available each year is capped at 65,000, with 20,000 additional visas for those with a U.S. master’s degree or doctorate. Each year, the number of petitions subject to this cap (some organizations are exempt) far exceeds the number available, and USCIS uses a random lottery selection process to determine which cases it will adjudicate.

Traditionally, employers seeking to hire H-1B workers file a complete petition packet – including forms, supporting materials, and filing fees –  on the first day of the H-1B filing period (on or around April 1st) in order to have their petitions considered in the H-1B lottery. The new registration rule will change that process significantly. It will require employers to pre-register electronically each of the cap-subject H-1B employees they wish to sponsor during a 14-day registration period. If one or more of an employer’s registered petitions are selected in the lottery, the employer will then be notified and asked to file a full petition with supporting documents during a designated ninety-day filing period. 

USCIS said on Thursday that it plans to implement the electronic registration system for the upcoming cap filing season in March 2020, pending completed testing of the system. The agency also said it will publish notice in the Federal Register once it has decided on the implementation timeframe and that it will provide “ample notice to the public.” In the meantime, companies and immigration counsel are left to speculate over the likely timing of the roll-out, when the 14-day registration period will commence, and whether to proceed with preparing petitions for filing as usual. Immigration attorneys, who normally handle all aspects of the H-1B petition process on behalf of corporate clients must also now grapple with how to adjust legal fees and billing procedures for H-1B cap matters, as well as how to handle payment of the new $10 registration fee.

Assuming the electronic registration system is implemented in time for the upcoming H-1B filing season, concerns remain regarding usability and operational integrity of the proposed registration system. In recently submitted comments on proposed revisions to the registration tool, the American Immigration Lawyers Association (AILA) – a voluntary bar association of more than 15,000 immigration attorneys and law professors – urged USCIS to finalize and complete the requisite testing of the registration system no later than the December 2019 to ensure that U.S. employers and their attorneys have enough time to adjust their H-1B filing preparations and adequately familiarize themselves with the registration system in advance of the initial registration period. AILA also reiterates that, until DHS announces in the Federal Register that the agency will implement the electronic registration system for upcoming H-1B filing season, many attorneys and U.S. employers will prepare for the April filing period by preparing full filing packages, thereby negating the supposed cost savings that guide the agency’s reasoning for the H-1B registration requirement.

Finally, concerns remaining regarding the technical viability of the system, and its ability to process the thousands of H-1B petitions that will likely be submitted on day one of the upcoming H-1B filing period. In 2019, USCIS received 190,000 petitions during the five-day H-1B cap filing period, with most petitions arriving on April 1st. If the new electronic registration system is implemented, a much higher volume of requests is expected, since only minimal information will be required to pre-register. Although USCIS has acknowledged and addressed IT concerns through notice and comment responses in the Federal Register, practitioners remain skeptical given prior hiccups with immigration-related e-filing platforms. Just this past January, for example, the Department of Labor’s new electronic filing system for H-2B visa lottery crashed within five minutes of opening, after tens of thousands of employers vying for a limited number of visa slots overwhelmed the website.

The timing and uncertainty surrounding H-1B electronic registration is exacerbating an already fraught H-1B program, creating uncertainty for companies that need to make talent acquisition plans ahead of the new year, making it even more difficult and urgent for foreign students to find U.S. job opportunities, and hindering the ability of immigration attorneys to provide concrete advice to anxious clients. While preregistration may ultimately have positive, time- and cost-saving effects, as things stand, the new rule is yet another factor making it more difficult to navigate the U.S. immigration system.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the November 14, 2019 edition of the The Legal Intelligencer© 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com  877-257-3382  reprints@alm.com.