The H-1B Visa Filing Process Has Changed. Here's What You Need to Know

​The annual rush to file H-1B cap-subject visa petitions during the first five business days of April seems like it could be a thing of the past. Employers that want to file this year need to be aware of a new electronic prefiling registration process.  

The new system requires employers to submit online registrations to be selected for the H-1B lottery. The registrations ask for minimal information for each visa requested. If selected from the registration pool, employers can then file H-1B cap-subject petitions as they did in the past, with an effective work start date of Oct. 1.

U.S. Citizenship and Immigration Services (USCIS) expects that the new electronic prefiling registration step will simplify the H-1B visa filing process and cut costs for employers, because only those randomly selected from the registration pool will be eligible to file petitions.

"The H-1B visa process will undergo perhaps the biggest fundamental change since the program's inception in 1990," said Tahmina Watson, an immigration attorney and owner of Seattle-based Watson Immigration Law.

Sarah Kilibarda, counsel in the Minneapolis office of Faegre Drinker, explained that "the process until now was that employers would prepare and file petitions for all individuals they wanted to have in the lottery. USCIS would run the lottery and return any petitions not accepted. Instead of preparing and filing all those petitions for entry into the lottery only to have USCIS return about 60 percent of them, employers will complete a registration and the agency will hold a lottery based only on those registrations."

Here's the new cap-season filing timeline, based on the latest information:

• Registration will be open from March 1-20. "It doesn't matter if you send in your registration on the 1st or the 19th, they will all be submitted into the registration lottery," Kilibarda said. Registration requires the employer's name and mailing address, tax identification number, information about the employer's authorized attorney, and the worker's name, date of birth, country of citizenship, gender, passport number, and education level, including whether they have attained a master's degree or higher from a U.S. university. Employers must pay a $10 fee for each registration. .
• The registration lottery will be held and notifications sent to employers no later than March 31.
• Employers will have 90 days beginning April 1 to file full H-1B visa petitions with supporting documents and filing fees.

"The electronic registration system is a significant change for the H-1B cap system, but if implemented smoothly, such a streamlined and efficient process will enhance the H-1B cap selection lottery process for users and interested parties," said Beth Carlson, counsel in the Minneapolis office of Faegre Drinker.

[SHRM members-only toolkit: Obtaining U.S. Employment Visas]

Setting Up a Registration Account

Employer accounts can be created at myUSCIS.gov beginning on February 24, and until the H-1B cap registration period closes on March 20.

"Employers will be asked to attest that the registration information is true and will have to certify that they intend to file a petition for that person if the registration is selected," Kilibarda said. Substitution petitions will not be accepted.If more than one registration for the same person is found, USCIS will consider all registrations filed by that employer for that person invalid.

The agency stated that it is not evaluating the quality of registrations for merit. It is simply eliminating duplicate submissions and choosing registrations at random.

The registration fee of $10 will be payable from a bank account, credit card or debit card through the agency's Pay.gov payment portal. "The system will accept batch payments, so an employer or attorney may submit multiple registrations at one time and make a single payment," said John Quill, based in Boston and chair of the immigration practice at Mintz.

Sari Long, an attorney in the Washington, D.C., office of Faegre Drinker, noted that my.USCIS.gov accounts are individualized, meaning that if an attorney is filing the registrations, the attorney would set up and use the account, not the employer.

Concerns About the Unknown

Immigration attorneys—typically filing petitions on behalf of employer clients—are worried about the untested system.

"Newly implemented electronic government systems are notoriously bug-laden and glitchy in their early phases," Watson said. "If this new electronic registration system has even a fraction of the same problems the Department of Labor had when it first unveiled its new FLAG [Foreign Labor Application Gateway] system for labor certification—the website was nearly unusable for weeks—the consequences could be catastrophic. Website crashes could potentially push the registration period out weeks and months, and employers will not be able to file petitions in time to have their foreign national employees begin employment with them by Oct. 1."

Quill added that USCIS has said it will suspend the registration process and return to the previous way of doing things if there are technical difficulties. "Employers should be prepared for the possibility that they will need to file full H-1B petitions in the first five business days of April 2020 if USCIS decides for any reason to suspend or not move forward with registration," he said.

USCIS spokesman Matthew Bourke said that the agency conducted stress-testing and evaluation before determining that the technology was ready. He added that the agency could lengthen or reopen the registration period if issues arise.

Employers are also worried that the odds of being chosen from the registration pool will get smaller this year due to the lower bar for entry. "The ease of preparation and lower cost of submission of a registration, as opposed to a full petition complete with USCIS filing fees, will most certainly increase the number of applications, meaning the chances of selection in the lottery will be lower than in previous years," said Jay Ruby, an attorney in the Atlanta office of Greenberg Traurig. "Some of the largest users of the H-1B program will likely be encouraged to file more registrations than they would have if they were required to file a full petition."  

Watson is also concerned that the new petition filing timeline, pushed to the last day of June, will significantly affect the timing of employment. "USCIS has already gained notoriety for their considerable adjudication delays, and it seems doubtful they will be able to adjudicate many petitions before October unless employers opt to use premium processing."

USCIS has not yet clarified what premium processing options will be available.

Get Started Now

Carlson said that although the new registration system seems straightforward and only requires basic information about the company and foreign national employee, organizations should analyze each case to ensure it is ultimately approvable.

"The simple registration step should not fool anyone into not doing a good case analysis before submitting the electronic registration," she said. "Case analysis must be done before registration because once selected it will be time to submit the petition and you want to be in the best position possible when it's time to file."

She outlined several steps to take before setting up registration accounts Feb. 24 and filing registrations on March 1:

• Identify employees for whom a registration will be submitted. "Decide who needs an H-1B. Do you have people on F-1 OPT or TNs or other statuses that will need an H-1B? Contact your counsel to get started."
• Analyze education to see if the beneficiary will qualify under the U.S. master's degree cap exemption.
• Obtain credential evaluations for non-U.S. degrees.
• Prepare labor condition applications (LCAs). "We will be filing LCAs with the Department of Labor as part of the case analysis before the March 1 registration. We want to have the LCAs done so that if the case is selected, we can then focus on preparing the rest of the petition within the 90-day period."
• Obtain detailed job descriptions. "There is a significant amount of analysis that needs to be done prior to the registration to determine, among other things, whether the job description is suitable and detailed enough, whether the position qualifies as a specialty occupation, what the SOC [Standard Occupational Classification] code and wage level will be, whether the beneficiary is qualified and possesses the requisite education, etc.," Watson said.

"USCIS has been issuing post-filing requests for additional evidence for more than half of the H-1B petitions filed—in most cases seeking additional evidence that the position offered by the employer is a specialty occupation," Ruby said. "The window to file the full petition if the registration is selected may not be enough time in some cases to secure a foreign credentials evaluation showing the worker has a degree in the appropriate field of study, which makes it prudent for employers and immigration attorneys to prepare as much of the petition as possible ahead of the submission of the registration."

Watson urged employers to be fully prepared for filing petitions, even before their registrations are selected.

"Each case involves screening and strategizing for any potential issues or red flags. At the end of the day, what would be the point of a successful registration if the case is ultimately a weak one that is unlikely to get approved?"