On Monday, November 4, 2019, Acting Deputy Secretary of the Department of Homeland Security Ken Cuccinelli stated during the SHRM Global Mobility and Immigration Symposium that he has a fairly high degree of certainty that USCIS will be ready to implement the tool for the upcoming H-1B cap season. He also stated that he expects USCIS will make a formal announcement by the end of the year as to whether or not USCIS will move forward with the tool for this upcoming H-1B cap season.
So, we are once again, at the end of the year waiting for certainty regarding the most important filing season of the year. H-1B “cap” season has evolved into a “tax filing season” exercise for immigration attorneys. Everyone is familiar with the U.S. tax filing deadlines that plague tax accountants. Similarly, every immigration law firm that includes an employment based practice lurches through February and March relentlessly preparing applications for an April 1st filing deadline.
On January 31, 2019, USCIS issued a final rule making significant changes to the H-1B visa lottery process. The rule seeks to eliminate the mad rush to file H-1B applications by adding an electronic registration requirement for petitioners seeking to submit H-1B cap-subject petitions. The final rule became effective on April 1, 2019, though DHS suspended the electronic registration requirement for the FY2020 cap season. We are currently waiting for an announcement as to whether the suspension will continue or whether immigration lawyers will be beta testing the new registration tool this spring.
There are several important required timeframes for implementation of the registration process:
30 day notice: USCIS must provide 30 day notice for implementation of registration.
14 day registration period: After the notice period, USCIS will open registration for 14 days. This period must be at least 14 days before the earliest H-1B cap filing date (April 1st). Presumably, registration would begin 3/18/2020. Notification of selection in the lottery will be sent electronically to the US employer.
90 day filing window: After selection in the post-registration lottery, USCIS will accept applications for 90 days.
Minimum Requirements for Registration
The registration process requires minimal information from both the H-1B employer and the foreign national. A $10 fee is required for each H-1B foreign national registration. Screen shots of the registration tool can be found here: https://www.regulations.gov/document?D=USCIS-2019-0012-0054
Required data for registration includes:
- Employer’s name
- Name and title of contact person
- Mailing address, telephone and email of contact person
- Employer FEIN
- Signature of contact person
- Full name of foreign national
- Date of birth of foreign national
- Country of birth of foreign national
- Country of citizenship of foreign national
- Gender of foreign national
- Passport number of foreign national
- Date of birth of foreign national
- Educational category of H-1B (regular or advanced degree cap)
- Details of immigration representative / attorney
Implications for Implementation of Registration
Immigration attorneys have had a year to ponder the possible effects of the new H-1B registration requirement. In theory, knowing if USCIS will actually select and review the foreign national’s H-1B petition would be a good thing. In practice, immigration attorneys are concerned.
On the one hand, under the old system, costs are high for employers with no guarantee that the time and cost invested will result in selection and processing of an application. It is difficult for firms to pull together high volumes of legally sound applications in a 2-3 month period of time.
On the other hand, some of the most attractive features of registration, low cost and minimal data entry, may undermine the process by swamping the system with registrations for unqualified applicants. In addition, there is no bar to foreign nationals playing the lottery with multiple employers which could result in multiple adjudicated applications that will ultimately result in the use of only one H-1B quota number. If the H-1B quota is ultimately not reached due to multiple registrations and denied applications, additional lotteries might be required to fill the fiscal year H-1B quota.
Will the good outweigh the bad? Will the technical tool even work as designed under heavy usage? Will multiple lotteries be required to fill the quota?
Uncertainty has become the name of the game in U.S. immigration. We can only will wait and see how the USCIS promises of a better future for H-1B processing takes shape. Time will tell. Stay tuned.