Upcoming H-1B Registration Process Still Fraught With Concerns

Immigration attorneys continue to have concerns about a new electronic registration process designed to make the H-1B visa application process easier, even as the government moves ever closer to implementing it.

U.S. Citizenship and Immigration Services late Dec. 6 announced that the spring 2020 H-1B filing season will feature an electronic preregistration process. The new protocol, laid out in a January 2019 regulation, will allow employers to enter the annual lottery for the specialty occupation visas without having to prepare a full petition with supporting documentation until they are actually selected.

“It does have the potential to make life easier,” said Ian Wagreich, a business immigration attorney with Hughes Socol Piers Resnick & Dym in Chicago. A system that allows employers to enter the lottery without all the usual advance preparation is “a step in the right direction,” he said.

Ironically, it could wind up providing the biggest benefit to the very employers the Trump administration has been most skeptical of: large information technology consulting companies.

The registration period will run from March 1 to March 20, 2020, and the USCIS has pledged to hold its lottery by the end of March. Per a November 2019 regulation, employers will have to pay $10 to register.

The announcement solidifies the agency’s commitment to the new process after USCIS acting Director Ken Cuccinelli hinted at it in an earlier letter to the American Immigration Lawyers Association.

“If this works, it’s brilliant,” but the details are still murky, said Anastasia Tonello of Laura Devine Immigration in New York. “That’s the trick.”

With H-1B denials on the rise, the prep work involved just to tee up an H-1B case for registration means the new process may not result in the time and money savings the agency is hoping for.

Second Change

Demand for H-1B visas, which are particularly popular in the tech industry, has been so high in recent years that the USCIS has held a lottery to determine which petitions it would process. Earlier this year, employers submitted 201,011 petitions for a total of 85,000 visas available for fiscal year 2020, which started Oct. 1.

This year’s lottery also was the first to feature a redesigned selection process that prioritized workers with advanced degrees over those with only a bachelor’s degree, the minimum requirement for an H-1B.

The change, which resulted in an 11 percent increase in the number of advanced degree holders who were selected, is part of the Trump administration’s push to ensure that the visas are awarded to the best and brightest workers.

The USCIS is billing preregistration as a time and cost saver for both the agency and employers that rely on H-1B visas.

“By streamlining the H-1B cap selection process with a new electronic registration system, USCIS is creating cost savings and efficiencies for petitioners and the agency, as only those selected will now be required to submit a full petition,” USCIS Deputy Director Mark Koumans said in a Dec. 6 statement.

Electronic registration had been a priority for former USCIS Director L. Francis Cissna, who also was pushing the agency away from paper-based intake.

‘Numbers Game’

The relative ease and low cost of registering could allow big IT consultants to flood the lottery with thousands of registrations.

Their business model is “a numbers game,” where it doesn’t matter if one worker is selected versus another because they perform the same job, Tonello said. By contrast, smaller employers really need the particular worker for whom they’re petitioning, she said.

The $10 registration fee is “such a low threshold,” and “many of the largest users of the H-1B system will figure out a way to game the system,” said Wagreich. That will “squeeze out” the smaller technology companies “that are driving growth in this country,” he said.

The USCIS says it’s taken steps to prevent that result.

“This final rule authorized USCIS to collect sufficient information for each registration to mitigate the risk that the registration system will be flooded with frivolous registrations,” agency spokesman Matthew Bourke said. That includes inclusion of an attestation with the potential for referrals to law enforcement if the information included in the registration is falsified, he said.

“Additionally, the final rule prohibits a petitioner from submitting more than one registration for the same beneficiary during the same fiscal year, and prohibits the substitution of beneficiaries,” Bourke said.

Savings Realized?

Immigration attorneys also aren’t so sure the average employer will benefit from the change.

“You’re not going to want to put a case forward and get one of those precious numbers if it’s not an approvable case,” said Tonello, the immediate past president of the American Immigration Lawyers Association. Employers and their immigration attorneys are still going to have to do a lot of ground work before registering in March, even if they don’t wind up putting together an actual package, she said.

There’s also the question of what will happen in the 90-day period employers have to file a petition once they learn they’ve been selected, Tonello said.

“The ideal situation” is where an H-1B petition is as ready as it can be at the time of registration, she said. But there could be cases where the job later changes or the employer hasn’t fully assembled the needed documentation, leaving them and their attorneys scrambling, she said.

Wagreich also is concerned about the agency’s technological ability to handle the high volume of expected registrations. “The USCIS track record with implementing new technologies has been pretty abysmal,” he said.

A 2016 report from the Homeland Security Department’s Office of Inspector General found the agency had little to show after years of work and billions of dollars spent to move away from paper filing.

“The system is under continuous evaluation and USCIS will continue to test the registration system during the initial registration period to address and fine-tune any immediate issues,” Bourke said.

But that testing likely anticipates receipt of 200,000 registrations, Wagreich said. What happens if there are 500,000 is “the great unknown,” he said.