The fact that the current Administration has been hostile to the H-1B program is no secret. The percentage of H-1B petitions which have received Requests for Evidence, Notices of Intent to Deny and Denials has increased dramatically during the past few years.
For example, in fiscal year 2015, the denial rate for initial H-1B petitions was 6%. By fiscal year 2018, without any changes to our immigration laws and regulations, the denial rate skyrocketed to over 30%. H-1B visas are for professionals: physicians, teachers, computer programmers, engineers and other professions which require a minimum of a 4-year university degree. In other words, H-1B visas are for “merit-based” immigration, exactly the type of immigration that the President claims to favor.
“We are very pleased by the services we get from the Law Offices of Carl Shusterman. Our experience in the past year with all our H1B renewals has been amazing, and we’ve obtained great results.”
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H-1B Online Registration System Announced
On December 6, 2019, the USCIS announced it had completed a “successful pilot testing phase” and would implement an electronic H-1B online registration process starting on March 1, 2020.
The announcement states as follows:
“Under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that requires only basic information about their company and each requested worker. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.”
During each of the past few years, employers filed around 200,000 initial petitions for 85,000 H-1B visas. This means that well over 50% of the H-1B workers that employers would like to hire are prevented from being employed in the U.S. While this may be great news for Canada, Australia, the UK, etc., it makes it difficult for U.S. employers to hire talented foreign-born professionals, even those who earned their degrees in the U.S. As a result of this misguided policy, the next Google, Facebook and Amazon may be developed abroad rather than in the U.S.
In January 2018, the USCIS published a 69-page regulation creating a new H-1B online registration system. However, USCIS failed to implement the program in time for the 2019 filing season.
Recently, USCIS implemented a rule that employers seeking to file H-1B cap-subject petitions must pay a $10 fee for each registration they submit for the H-1B cap selection process.
The New H-1B Online Registration System
How Will It Work?
Here is what USCIS Deputy Director Mark Koumans has to say about the program:
“By streamlining the H-1B cap selection process with a new electronic registration system, USCIS is creating cost savings and efficiencies for petitioners and the agency, as only those selected will now be required to submit a full petition… The agency completed a successful pilot testing phase, which included sessions with industry representatives, and implementation of the registration system will further the goal of modernizing USCIS from a paper-based to an online-filing agency.”
So employers will no longer have to submit completed H-1B visa petitions until USCIS determines which petitions it will consider. This will save employers huge amounts of attorney fees and government filing fees.
However, since it is far less expensive for employers to use the H-1B online registration system, employers may file electronic H-1Bs at a higher rate than they have filed H-1B petitions in the past. If so, this would lower the odds that a particular employee will be selected in the H-1B lottery.
Another concern is whether H-1B petitions will continue to be selected on a random basis.
This is unclear. If the new system is purely a lottery, all that should be required would be the name of the petitioner and the name of the beneficiary.
However, will the system require employers to provide any of the following information?
- The employee’s occupation;
- The employee’s salary;
- The employee’s education and experience;
- The ability of the employer to pay the prevailing/actual wage;
- Evidence of the employer-employee relationship.
If this is a random lottery, what would be the purpose of requiring an employer to submit any of the above information?
The chart below may indicate why such information may be required:
Here is how the system has operated during the last few years for the outsourcing companies:
- Employers file H-1B petitions during the first week of April.
- USCIS conducts a lottery choosing 85,000 petitions, and announces the results.
- USCIS sends thousands of Requests for Evidence (RFEs) asking for various things including proof of an employer-employee relationship.
- Employers respond to the RFEs.
- USCIS reviews the responses and often issues Notices of Intent to Deny (NOIDs).
- Employers respond to the NOIDs.
- USCIS often denies the H-1B petition.
- Some employers choose to challenge the denial before the Administrative Appeals Office (AAO) or in Federal Court.
If, under the new H-1B online registration system, the USCIS could simply refuse to accept a petition where they did not believe that a valid employer-employee relationship existed, then almost all of the above steps would be eliminated. If an employer disagreed or disputed USCIS’s authority to do so, they would have to challenge USCIS in Federal Court.
Does the USCIS contemplate doing this?
In their latest announcement, they simply state the following:
“USCIS will post step-by-step instructions informing registrants how to complete the registration process on its website along with key dates and timelines as the initial registration period nears. USCIS will also conduct public engagements and other outreach activities to ensure registrants and interested parties are familiar with the new registration system. The agency may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.”
“DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration system and provide additional details on the process.”
Since March 1, 2020 is right around the corner, let’s hope that this notice will give employers sufficient time to prepare for the upcoming H-1B season and will leave the lottery in place.
H-1B Online Registration System & More – Additional Resources
- Trump has Built a Wall of Bureaucracy to Keep out the Very Immigrants He Says He Wants
- USCIS May Court Disaster With Untested H-1B Visa Registration System
- Challenging H-1B Denials in Federal Courts: Trends and Strategies
- H-1B News – What You Need to Know