Employers who seek to sponsor foreign workers for cap-subject H-1B visas in 2020 will likely see a big change in the process – the use of an electronic pre-registration system that many believe will improve efficiency and reduce costs.
The Existing H-1B Cap Process
The H-1B visa program is used by a wide variety of businesses to temporarily employ foreign workers in H-1B “specialty occupations” – generally jobs that require a bachelor’s degree or higher in a specific specialty or its equivalent. Each year, 85,000 new cap-subject H-1B visas become available, but, in recent years, the demand for the coveted visas has far outstripped the supply.
Each year, the annual batch of 85,000 H-1B visas is made available on October 1, the start of the U.S. Government’s fiscal year. However, because of the high demand, employers must file their visa petitions with U.S. Citizenship and Immigration Services (USCIS) months earlier – during the first week in April when the period for filing opens. Wait any longer and the visas are gone.
There’s also no guarantee that the USCIS will adjudicate H-1B petitions filed the first week of April. Each year since 2013, more than 85,000 H-1B applications have been filed during that first week alone, and USCIS has conducted a lottery to pick the petitions to be processed. This past April, over 201,000 petitions were filed for the 85,000 available visas. For employers desperate for H-1B talent, the math is not particularly encouraging.
To make matters worse, an employer seeking to sponsor a foreign worker for a cap-subject H-1B visa has historically been required to file a full-blown petition, complete with documentary evidence, before the lottery is conducted. This petition must demonstrate that the job the employer seeks to fill qualifies as an H-1B “specialty occupation” and that the foreign worker qualifies for the job. Preparing and filing this petition can be time-consuming and expensive. The process is particularly frustrating to the employer when there’s no guarantee that the petition will even be selected for processing.
The Anticipated Change
It appears that a major change – which should be beneficial – is on the way. In January 2019, USCIS announced that it was implementing a new electronic pre-registration system to be used for the cap-subject H-1B process. Under this system, employers who wish to file cap-subject H-1B petitions must first register electronically during a designated period. Next, USCIS will conduct a lottery and notify employers if their registrations have been selected for adjudication. Only if its registration is accepted will an employer be required to file a full-blown petition.
USCIS initially wanted the new electronic pre-registration process to be rolled out in April 2019. However, when the final rule on the process was announced in January, USCIS suspended implementation for a year “to complete user testing and ensure that the system and process [were] fully functional.”
Although another one-year delay is possible, USCIS clearly wants to get the new process in place for the upcoming H-1B cap season. Just last week, USCIS issued another rule that will require employers to pay a non-refundable $10 fee to pre-register under the new electronic system. USCIS has said that it will make an announcement about the implementation time frame and initial registration period once it has made a final decision on whether to move forward with the process in 2020.
Employers interested in filing H-1B cap petitions should stay tuned. While the electronic pre-registration system is likely to present some new challenges, we are optimistic that the process will ultimately provide some needed predictability and help employers save time and money.