1. The New Rule
On January 9, 2020, the US Citizenship and Immigration Services (USCIS) published its final rule concerning the H-1B Visa registration process for H-1B cap-subject petitions for Fiscal Year 2021. The new Rule fundamentally alters the selection process by implementing an initial registration system beginning on March 1, 2020 and lasting through March 20, 2020. During this 20-day period, an employer must submit preliminary registration for each foreign worker for whom they seek to file an H-1B cap subject petition and pay a $10.00 H-1B registration fee for each submission. The preliminary registration will require mostly basic information about the employer, the candidate as well as the specialty position. Notably, USCIS indicates that employers will be able to register multiple individuals in a single online session and that the electronic system will allow Employers to prepare, edit and store the information in their account prior to final payment and submission.
The Rule further confirms that an Employer may only submit one registration per beneficiary in any fiscal year and notes that if that rule is violated all registrations filed for that beneficiary for that fiscal year will be invalid. USCIS indicates they will then complete the selection (lottery) process by March 31, 2020 and notify all registrants with selected registrations that they are eligible to file an H-1B cap-subject petition for the listed foreign national at that time.
2. Benefits to Employers
Provided the system works as intended, the initial registration provides for a streamlined process to allow Employers to enter potential H-1B applicants into selection process (lottery) without having to complete a full and thorough application. USCIS Deputy Direct Koumans indicated that the new system “is creating cost savings and efficiencies for petitioners and the agency, as only those selected will now be required to submit a full petition.” Essentially, employers can identify and submit the employees for whom they may wish to file and submit relatively sparse information and a nominal fee until the selection process is completed. Contrasted with the prior system where employers would have to complete the full petition and submit the full fee to be considered for the lottery the new system does appear to have some clear advantages.
3. Risks to Employers
The greatest risk at the moment is the slap-dash last minute manner in which USCIS has chosen to implement the rule. Although the final rule is now in effect USCIS has failed to provide information concerning how employers will register, when employer may initially register or further specifics concerning exactly what will be submitted. Moreover, although USCIS has indicated that the selected employers may submit the H-1B Petition during a “designated time frame” after selection they have given no guidance whatsoever as to what type of time frame will be utilized though the federal statute does require at least a 90 day filing period.
Another risk is the likelihood of an increased number of filing requests. For FY 2020 Cap Season a total of 201,011 Applications were submitted to USCIS with only 85,000 selected for processing. However, with the lowered requirements for initial submission it is likely that a far greater number of applicants may well apply for the FY 2021 Cap season. Moreover, since only a nominal fee is paid to be considered more employers may well opt to put in an initial submission for an employee who may well not meet the requirements for approval. Accordingly, the odds of being selected will likely be lowered through this process due to the increased number of applicants.
4. Our Recommendations
Any Employer considering filing an H-1B for FY 2021 should speak with their experienced H-1B legal counsel as soon as possible to develop a strategy in light of the newly published rule. Some employers will opt to expand the pool of candidates to provide in the initial selection process due to the low barriers to entry. However, for other employers that may not be a fruitful alternative. Another concern is the possibility that there is an error with the lottery system that cases USCIS to revert to the old system at the last minute. In order to prepare for this possibility employers may consider having the outlines of an application prepared in case a filing must be made on an accelerated emergent basis.
Of course, once further specifics are released we will have updated guidance concerning on any changes to the preliminary registration process. To speak with one of our experienced H-1B Visa Attorneys please feel free to schedule a consultation by contacting us at your convenience.