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This Year’s New Immigration Process to Capture an H1B Visa

Almost a year ago, in November 2018, the Department of Homeland Security announced a proposal for significant changes to the process to file H-1B cap petitions, commonly known as the H-1B visa lottery. One of those changes went into effect last year, in the Fiscal Year 2020 H1B lottery. That change reversed the order by which DHS selected H-1B petitions.  This was anticipated to result in a 16 percent increase in the number of selected beneficiaries with a master's degree or higher from a U.S. institution of higher education. This aligns with the Trump Administration objective to allocate visas to the most highly skilled and highest paid workers.

After much turmoil, the second and most substantive change in H1B processing from that proposal was delayed and not implemented in the FY2020 H1B lottery. However, it is projected that the change will go into effect this year. 

What does the rule change mean for companies? It probably means you will save money.  Basically, up until now we have always been required to prepare a full H1B submission with all steps done and fees paid, and make a timely filing, even though it was anticipated that many of those properly prepared cases would never be selected, due to the very limited number of H1B visas.  If the cases weren’t completely done and timely filed, you would never have a chance at getting your employee selected, because H1B numbers were exhausted in the first few days of filing.  Compounding the problem, USCIS often held cases for two or three months  before notifying employers that their cases were not selected.  This meant that employers kept jobs they needed to be filled open and became frustrated with the system. 

This year, under the proposed regulation, companies who want an  H1B worker will first file only a streamlined electronic registration (instead of a full and complete H-1B petition with fees). USCIS would then conduct the annual H-1B lottery from the pool of timely filed electronic registrations.  If a company’s case is selected, then they are notified that they are eligible to file a full and complete H-1B petition within a designated filing period.

This system should save companies money because if their case is not selected, then they will not need to have their attorney complete a full H1B application. Further, companies will know whether their case is selected earlier than under the current process, which allows them to fill vacancies sooner.  

It is important to note that the registration process will require information from both the employer and the beneficiary including but not limited to: the employers name, identification number, and address; the employers authorized representatives name, job title, and contact information; as well as the H-1B candidate's name, date of birth, country of birth, country of citizenship, gender, passport number, and whether the candidate has obtained a masters or higher degree from a U.S. institution. Employers would be also required to make an attestation indicating their intent to file an H-1B petition for the beneficiary in the position for which the registration is filed. Petitioners would be limited to one registration per individual for the same fiscal year. USCIS is proposing to charge a small fee of $10 USD for the electronic registration.

It is anticipated that selected preregistrations would be given a 60-day filing period to submit their H1B complete application.  This may prove a short window for companies or law firms that file many H-1B petitions, and thus it is anticipated that some advance preparation for a full H1B petition filing may be necessary.

It is also anticipated that the electronic registration period will begin at least two weeks before the first date the H-1B filing window opens each fiscal year, which is commonly April 1st, and it would remain open for at least two weeks.  As of October 7, 2019 USCIS, has provided little detail on the preregistration procedural specifics.  In a letter dated September 30, 2019 the USCIS affirmed only that the agency “intends to implement the preregistration process for the FY2021 cap season, subject to continued testing of the system.” (emphasis added)

The American Immigration Lawyers Association is forcefully advocating that the H1B registration fee payment portal and the electronic registration system be completed and tested at the earliest opportunity, in order that interested parties be given enough time to familiarize themselves with the process and system. 

If past new systems effectuated by DHS, DOL, and DOS are any indicator, there will be glitches in the new system, and this will be a stressful year for H1B employers and their attorneys. Be sure to hire an experienced lawyer like Law Office of Adrienne J. Vaughan that has worked through these myriad system glitches for more than 15 years, and we’ll take the frustrations off your shoulders.

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