It’s not new that the H-1B season has been riddled with anxiety for employers, employees, and immigration attorneys alike.  We wondered if we could organize ourselves enough to file our H-1B petitions by the first week of April.  Do we have all our ducks in a row?  Have we signed the correct pages on the I-129? Will the Department of Labor (DOL) certify our LCA on time to file?  Has our FEIN been verified?  Even if our above concerns were allayed and we prepared a stellar H-1B petition, there was that chance that our application may not even be reviewed by USCIS.  We were fully aware that H-1B petitions were selected for adjudication by lottery and there was a chance that our petition might not see the light of day.  This year’s process, however, is vastly different.  It seeks to cut costs for employers and streamline the overall H-1B application process.  The annual H-1B rush to file during the first week of April could be a thing of the past.  Fingers crossed.

Read on to find out more about the process, or, contact us if you have questions about applications for your employees.

The New System:  H-1B Registration Basics

For this year’s H-1B cap season, USCIS has implemented an online registration system where employers or their attorneys can submit minimal information about the employer and the person they intend to sponsor.  The information submitted will not be evaluated for merit, but will be used to conduct a random lottery.  Once the lottery is conducted, USCIS will notify employers on the outcome.  If selected, employers have 90 days to submit their full H-1B visa petitions including supporting documents and filing fees.  USCIS expects that this new pre-filing registration step will simplify the H-1B visa process and cut costs for employers, because only those randomly selected from the registration pool will be eligible to file.  The timeline to remember is as follows:

March 1 to 20:  Registration is open.  Theoretically, it should make no difference if you submit your registration on the 1^st or the 19^th.  The information provided will be submitted in the lottery.

Between March 21 to March 31:  USCIS will hold the registration lottery and employers will be notified on the outcome of the lottery. 

April 1:  Employers may begin filing their full H-1B petition.  Note:  employers will have 90 days starting April 1 to file their full petitions including supporting documents and filing fees.

October 1:  Earliest date your employee beneficiary can begin working in H-1B status.

Potential Concerns on the New System

As with any newly implemented government electronic system, there is a valid concern that this one will crash or be glitchy in its early phases.  When the DOL unveiled its new FLAG system for labor certification, the website was unusable for weeks.  The consequences of a system crash could be catastrophic.  USCIS has said that, in the event of a technical issue, it will suspend the registration process and return to the previous way of doing things.  What does this mean for employers?  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 to suspend and not move forward with registration. 

What Happens if Your Registration is Not Selected?

As widely anticipated, USCIS will likely receive more than enough registrations.  However, if your registration is not selected in the lottery, it is not the end.  All properly submitted registrations will remain on reserve for fiscal year 2021.  If USCIS needs additional registrations, the agency will select a sufficient number of registrations or reopen the registration period. 

What can Employers do now to be Fully Prepared for Registration?

Although the new registration system seems straightforward and appears to only require basic information from the company and the employee, organizations should work with their attorneys and analyze each case to make sure it is ultimately approvable.  If case analysis is properly completed, employers will be in the best possible position when it is time to file.  Some steps employers can take now are to:

• Identify employees who might need an H-1B registration submitted.  Employees in F-1 OPT status tend to require H-1B sponsorship as OPT will only give work authorization for 1 to 3 years. 
• Assess whether any prospective H-1B candidates may qualify under the U.S. master’s cap.  Employers should be aware that this is more complicated than it sounds and should work with their attorney to figure out whether the candidate qualifies for the U.S. master’s cap.  This would give the candidate a higher chance of being selected in the lottery as more visas are available for those with a qualifying U.S. master’s degree.
• Obtain credentials evaluations for any non-U.S. degrees equating them to U.S. degrees.  Again, employers should work with their attorneys in obtaining credentials evaluations.  Many immigration attorneys work with third-party agencies to obtain credentials evaluations and can simplify this process.
• Work with your attorney to clarify job descriptions, identify the prevailing wage for the offered H-1B position, and prepare LCAs for certification.  

Agarwal Law Group has assisted numerous employers in filing successful H-1B petitions for their employees.  Please do not hesitate to contact us for assistance with your H-1B petition or to schedule a consultation. 

Pratibha Agarwal, Principal Shareholder

Agarwal Law Group

Email:  [email protected]

Phone: (703) 348-1663

4601 North Fairfax Drive, Suite 1200

Arlington, Virginia 22207