Introducing the New H1-B Pre-Registration Process— How Does this Affect Your Company?
With all the buzz and uncertainty, many of you have now heard about the new process surrounding the H-1B lottery. U.S. Citizenship and Immigration Services (USCIS) is launching an electronic pre-registration system through which an intending H-1B petitioner for FY21 must submit a registration containing certain preliminary information about the company and beneficiary to be considered for an H-1B visa.
This is otherwise known as the H-1B cap season. The phrase “H-1B cap” refers to the number of new H-1B visas that are allotted each fiscal year:
- The H-1B Visa Reform Act of 2004 added 20,000 H-1B visas for eligible H-1B beneficiaries holding advanced (“graduate”) degrees from U.S. universities.
- During the H-1B petition lottery, all petitions are applied against the 65,000 “regular” cap visa pool.
- Beneficiaries with a U.S. graduate degree will then be run against the master’s cap, effectively giving them a second chance at the lottery.
The new electronic system—how do I navigate the new process?
Under the new electronic system, companies will file an online registration for each individual they seek to sponsor for a cap-subject H-1B petition during the registration period.
USCIS has notified the public that the online registration system will be open from March 1 through March 20, 2020.
After the registration period, if there are more registration requests than the number of visa allotments available:
- USCIS will conduct a lottery to select the sufficient number of registrations projected to reach each H-1B cap.
- USCIS will send a “selection notice” via the electronic system to the company indicating that the petitioner may then file the full H-1B petition during a 90-day window after April 1 for each beneficiary whose registration was selected.
What are the top four areas of concern that companies should be aware of?
#1 Concern: Filing one single registration and the impacts to beneficiaries listed.
An employer must file one single registration for each prospective H-1B beneficiary, and an employer will not be allowed to substitute (i.e. switch) beneficiaries. If an employer violates these limitations, the government will reject all registrations the prospective employer filed for that beneficiary.
H-1B cap petitions for selected registrations will be accepted during a 90-day filing window that is expected to take place from April 1 – June 30, 2020.
USCIS has not made any announcements about any extension of that filing window beyond June 30, 2020.
However, they did indicate that if not enough applicants file their H cap petitions within that 90-day window, USCIS may reopen the lottery at a later date to select more beneficiaries from the online registration system to ensure they fill all the visas available.
#2 Concern: Potential for a company’s chances may decrease with the new electronic registration system.
Under the previous system, employers were required to prepare and submit an H-1B petition and pay the associated filing fees (over $460, and may include a $1,500 fee to fund U.S. worker training programs, a $500 fee for fraud prevention and $4,000 for employers whose workforce is comprised of more than 50% H-1 and L-1 workers).
Under this process, USCIS received 201,011 petitions during the FY 2020 petition selection process (“lottery”) filing period and 190,098 petitions during the FY 2019 filing period. Historically, demand far surpasses the H-1B cap quota, and due to the lower bar for entry (i.e., the registration with simple information about the employer and beneficiary and $10 registration fee), we anticipate that registrations submitted will again exceed the 65,000 cap limit. There is widespread concern that companies will flood the online registration process to improve their chances of obtaining H-1B visas. Previously, a company had to float $2500 in filing fees to submit an H-1B petition. Under the new system, a company will only have to pay a $10 registration fee and submit minimal information (e.g., no salary information, no client information, no job description, etc.).
Both in the near term and long term, increased H-1B lottery submissions could drastically reduce the number of H-1B slots that many companies “win” in the lottery.
We encourage immigration and mobility professionals to advise internal business partners regarding this risk.
#3 Concern: Employer vs. registrant accounts.
USCIS recently held two webinars for registrants explaining how to set up their online accounts. One area of confusion is the process for authorized signatories and required email addresses. USCIS, in its explanation, was undoubtedly firm that “one account = one person = one e-mail = one entity” and said that the e-mail address should be unique and not shared since there are attestations involved when the account is created. However, USCIS clearly did not factor in the need for any complexity. For example, if there is one person who is the authorized signatory for multiple entities with different FEIN’s, that person cannot create multiple accounts under one e-mail address. USCIS did not have an answer to the question of how to handle that. Presumably, an employer will need to set up an e-mail account for each entity that can receive the submissions for signature, approval and submission.
#4 Concern: The capability of the new system and streamlining announcements.
While the agency fully anticipates that the process will move forward, the registration rule allows USCIS to suspend the registration process at any time before, during or after implementation by simply announcing this on the USCIS website. This means that even if USCIS implements the registration process this upcoming year, it is possible that the system could fail and that the government would revert to the traditional H-1B cap filing process with little remaining time to prepare complete filings before the April 1, 2020 deadline.
The online registration tool is brand-new, the government is still designing and building the tool and the government has not tested the system under real-world circumstances. Immigration agencies have a poor record of launching new software technologies (e.g., Diversity Visa failure; Department of Labor LCA rollout). There is widespread concern within the business community, and even within the government, about the agency’s ability to launch the system without problems. Therefore, whether due to technical or other logistical difficulties, USCIS may cancel the registration process, revert to the normal process and require paper filings on April 1. The government has not yet released information on how it will handle that scenario, and we do not know yet whether the government will require paper filings (under the old system) or, if so, under what timeline. As a result, uncertainty will continue to ferment on the parts of both the employers and the employees who hope that their submission gets selected.
Therefore, it is important that you and your company explore each of the scenarios outlined above to ensure you are ready for each possibility for this year’s H cap season. It will require additional resources on everyone’s part, but it is important to understand the potential issues you might face to ensure you are prepared and can set the proper expectations for both the employer and the employees you are considering for this season's H cap program.
We would like to thank our guest blog author Kelli Duehning for her time and sharing the latest immigration updates with us!
Kelli is Senior Counsel in the San Francisco office of Berry Appleman & Leiden LLP, practicing in the firm’s Compliance and Government Relations team. Kelli joined BAL after a 17-year career with the Department of Homeland Security U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice Immigration and Naturalization Service (INS).
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