USCIS Aims to Improve H-1B Filing Process

USCIS is preparing to roll out a significant change in the process for filing new H-1B petitions in 2020 in an attempt to reduce some of the uncertainty and inefficiency that the current lottery process has created. TheH-1B programallows companies in the United States to temporarily employ foreign workers in specialty occupations that require a bachelor’s degree or higher in the specific specialty, or its equivalent.

This year, under the proposed rule, companies who want to hire an H-1B worker will first file a streamlined electronic pre-registration with a new $10 fee. USCIS is then expected to conduct the annual H-1B lottery from the pool of timely filed electronic pre-registrations. If a company’s case is selected, the company will then be notified that they are eligible to file a full and complete H-1B petition (including the full H-1B filing fees) within a designated (yet to be determined) filing period.

H-1B Process Overview

There is an annual numerical limit (“cap”) of 65,000 new H-1B visas available each year. The first 20,000 petitions filed on behalf of workers (“beneficiaries”) with a U.S. Master degree or higher are exempt from the cap. Applications to extend a previously granted H-1B status, to change employers, or to change the terms of employment are generally not subject to the cap. Also not subject to the H-1B cap are H-1B workers who are petitioned for or employed at a higher education institution or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization.

The H-1B cap is reset each year at the start of the federal fiscal year, October 1st. The first day that employers may file for new potential workers each year is approximately April 1st. For several years, USCIS has received enough full and complete petitions to fill all 65,000 visas and the 20,000 Master degree visas within the first few days of the application period. At that point a lottery has been conducted to determine which petitions would be reviewed and all cases that are not selected are returned. USCIS selects enough cases to take into account denials and rejections. Under this system, employers must have a full petition prepared and submitted, whether or not they are selected for the lottery. There can also be months of waiting to find out if your submission of a complete petition is going to be accepted for review or rejected only because your application was not chosen in the lottery.

Changes for Fiscal Year 2021

This year, USCIS is planning to implement a new system to handle the lottery process. In a new rule set to take effect December 9, 2019, USCIS will require a pre-registration system with an additional $10 fee to start sometime between January and March. USCIS stated that “the registration fee is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States.”

There are many details and deadlines that USCIS has yet to announce, but we do know that the new system will include a required electronic pre-registration system for each potential H-1B position. Employers will pay a $10 non-refundable fee for each H-1B electronic pre-registration submitted by petitioning employers, including those eligible for the advanced degree exemption. Payments will be made via pay.gov. It is expected that credit card, debit card, check or savings accounts will all be acceptable forms of payment. Employers will be able to file and pay for multiple pre-registrations.

USCIS will choose from the pre-registration pool which employers and positions may then move on to the next round and submit a completed petition with all filing fees for a full evaluation. The benefit of the new system to employers is that a complete petition for an H-1B worker (Form I-129), labor certification, and all supporting documents do not have to be prepared until an employer is selected through the pre-registration process. It should be noted that due to the expected time frame between the pre-registration selection and final filing deadline, it will be advisable to do some preparation work beyond the streamlined registration prior to lottery selection. These changes also mean that employers should be prepared to start the H-1B earlier than in previous years.

USCIS is conducting several rounds of testing of the new system before announcing more details. If USCIS completes successful testing, the government will announce the initial registration period and more details in the Federal Register. It is expected that if USCIS moves forward with the new system, pre-registration would be open sometime between January and March 2020.