As we’ve previously explained, some big changes are coming this year to the H-1B visa process. Employers use H-1B visas to temporarily employ workers in “specialty occupations” – generally, jobs that require a bachelor’s degree or higher in a specific specialty or its equivalent.
Each year, the government makes available 85,000 new cap-subject H-1B visas, but, in recent years, the demand has far outstripped the supply. As a result, U.S. Citizenship and Immigration Services (USCIS) has conducted a lottery to determine which petitions would be adjudicated. In 2019, more than 201,000 petitions were filed for the 85,000 cap-subject H-1B visas, meaning USCIS did not even consider over half the petitions.
Under the prior process, employers had to submit fully prepared petitions for the cap-subject H-1B visas during the first week of April. Then, after the petitions were filed, USCIS conducted the lottery and adjudicated the lucky 85,000 petitions selected. As a result, many employers incurred considerable effort and expense filing full-blown petitions, only to find out that their petitions would not be adjudicated.
Beginning this year, USCIS will use a new process that should improve efficiency and reduce employer costs. Under this new process, employers will file electronic pre-registrations for prospective H-1B employees. USCIS will then conduct the lottery and identify the registrants who were selected. Only if a registrant is picked in the lottery will the employer be required to file a full-blown H-1B petition. This new process should save considerable time and expense as it will allow employers to avoid preparing and filing petitions that don’t get selected for adjudication.
What’s the Latest?
USCIS recently provided some additional details about the timing and information required for the initial registrations. Unless there is a last-minute change, employers will submit their registrations between March 1 and March 20, 2020. These registrations will be submitted through an H-1B registrant account in the myUSCIS online portal, which is currently available for certain other USCIS filings. At present, the online portal does not permit anyone to create an H-1B registrant account, but USCIS has indicated that it will allow the account creation prior to the March 1-20 submission period. Authorized attorneys will be allowed to file H-1B registrations for employers.
As part of the electronic registration process, the employer or its attorney will be required to provide some basic information about both the employer and the prospective H-1B employee. This includes the employer’s legal name, Employer Identification Number (EIN), primary office address, and the name, job title, and contact information of its authorized signatory, as well as the employee’s name, gender, date of birth, country of birth, county of citizenship, and passport number. The employer will also be required to pay a $10 non-refundable fee for each registration, using a link to the pay.gov portal.
The initial electronic registration will not require information about the position being offered or the employee’s qualifications for that position. However, before submitting the registration employers should carefully evaluate whether the position is a “specialty occupation” and whether the employee qualifies for the position. In filing the electronic registration, the employer will be required to attest, under penalty of perjury, that it intends to file a petition for the foreign worker if selected in the lottery. USCIS has indicated that cases selected in the lottery that are not filed may be flagged for fraud, so employers need to consider whether they can follow through with a viable petition before submitting the electronic registration.
USCIS has stated that it expects to conduct the lottery and notify employers about the selected registrants no later than March 31, 2020. If a registrant is selected, USCIS will include the applicable petition filing period with the notice of selection sent to the employer. The regulations relating to this new process indicate that employers may begin filing petitions for selected registrants as early as April 1 and that they will have at least 90 days from the date of registrant selection to get the H-1B petition filed. According to USCIS, it will adjudicate filed petitions in the order they’re received.
Some of the details about the new process are still unclear, but USCIS has promised to provide additional information before registration begins on March 1. Employers interested in sponsoring foreign workers for cap-subject H-1B visas this year need to be gearing up now and should stay tuned as more information is made available.