Planning for the New H-1B Cap Registration System: Balancing Risks and Rewards of Preparation Versus Procrastination

USCIS announced that the H-1B cap registration period will open on March 1 and close on March 20, 2020, pursuant to the USCIS registration rule effective April 1, 2019. Employers will be required to submit a registration, along with a $10 registration fee, for each individual for which they plan to file an H-1B cap-subject petition. USCIS will then use the electronic registrations to randomly select enough registrations to meet the 85,000 available H-1B visas (65,000 regular cap and an additional 20,000 reserved specifically for master’s degree holders) and will announce the selections no later than March 31, 2020.

At first glance, this seems to be an easy way for employers to save money on legal fees by not preparing full petitions until the selection process is complete because employers would only incur legal fees for those selected in the lottery. However, the accelerated timeline and the lack of information about the new system and its implementation pose a substantial risk for H-1B petitions that are prepared after the selection process. Moreover, USCIS has yet to announce whether the filing window will begin on April 1, 2020 (as has been required in prior years), which would just be one day after their self-imposed deadline to announce the cap selections.  As a result of this highly unpredictable and untested new process, we have outlined H-1B preparation options below to allow employers greater flexibility when considering their preferred risk level.

FACTORS THAT MAY EFFECT THE SELECTION OF THE H-1B PREPARATION OPTIONS

While assessing which H-1B preparation option to select, we have delineated H-1B policy changes that should be considered. Since the introduction of the “Buy American and Hire American” Executive Order in April 2017, USCIS has proposed and implemented a series of changes to the H-1B visa program in the name of “protecting U.S. workers.” Many of the policies have placed additional burdens and costs on U.S. companies that are struggling to fill positions with qualified U.S. workers. These policy changes dictate that H-1B petitions need to be prepared thoughtfully and meticulously to secure success outcomes. The following salient H-1B policy changes are summarized below:

  1. According to a recent National Foundation for American Policy analysis of USCIS data, denial rates for H-1B petitions for initial employment (primarily new employees) quadrupled, rising from 6% in FY 2015 to 24% through the third quarter of FY 2019. The 12% denial rate for continuing employment [mostly for existing employees] is also historically high: 4 times higher than the denial rate of only 3% for H-1B petitions for continuing employment as recently as FY 2015.[1]
  2. USCIS plans to publish a rulethat would “revise the definition of specialty occupation . . . and revise the definition of employment and employer-employee relationship.” Employers should anticipate a far-reaching rule and these changes could alter adjudication standards.[2]
  3. The government has not been entirely clear about the post-selection process and timing, therefore creating great uncertainty about the time that would be allotted for H-1B petition preparation.
  4. Due to the potential for a condensed timeframe between lottery selection and the H-1B filing deadline, the influx of activity on the Department of Labor website that administers the certification of labor condition applications (LCA) could experience serious technical problems. The certified labor condition application is required for all H-1B petitions and H-1B petitions will not be accepted without a certified LCA.

Our team has analyzed the information distributed by DHS, USCIS, and the American Immigration Lawyers Association (AILA) to identify three pathways to navigating the H-1B registration system and the subsequent filing of selected petitions. Each option has different costs and risks associated. All options include the legal team’s review of the beneficiary’s identifying documents to confirm accuracy of the biographic information that is being entered. We would be happy to discuss what may work best for your business.

The differences in the legal fees in the options listed below are directly related to the additional expenses we would incur (such as overtime) for H-1B petitions prepared in a condensed timeframe.

REGISTRATION FEE FOR ALL OPTIONS:

LEGAL FEE                  $50.00 PER H-1B PETITION REGISTERED. THIS FEE WILL BE CREDITED TOWARD THE LEGAL FEE IF THE REGISTRANT IS SELECTED.

USCIS FEE                   $10 FOR EACH REGISTRATION

Option One: Prepare beneficiary and petitioner information for filing as usual

Risk Level: Low

Cost: Medium (Lower legal fee overall. The legal fee is split between two stages.)

  1. Legal fees for preparation of the H-1B petition are payable at the time the H-1B case is initiated. We will not collect the portion of the H-1B legal fee for finalizing the H-1B for submission until the H-1B petition is selected.
  2. If the H-1B petition is selected, we will then and only then collect the legal fees associated with finalizing the H-1B for submission.

Best for: Risk-averse companies that want to prepare petitions in advance of deadlines to prepare for scenarios such as system glitches, USCIS policy changes, etc. Good for companies who haven’t filed for an H-1B petition previously or when the H-1B petition is in support of high-priority candidates and want to ensure that given the adverse H-1B adjudication trends, that there is ample time to prepare the best possible submissions to USCIS.

What it entails: You would submit all employee documentation, petitioner information, job description and duties, and project details (if applicable) on a normal timeline consistent with an early April filing. We will review employee qualifications and the job duties to ensure H-1B compliance, examine documents to prove work availability to troubleshoot potential problems early, and review the totality of the case to ensure that the specialty occupation and employer-employee relationship requirements can be met when the case is selected for the cap. The legal fee due prior to registration includes the LCA filing (which will be done prior to the cap selection process to ensure timely filings once selections are made). The petition will be prepared prior to cap selection and we will finalize the H-1B petition for submission upon selection.

Option Two: Collect selected documentation for attorney review, file LCA prior to cap selection

Risk Level: Medium

Cost: Medium (Regular legal fees, we will only assess a legal fee for the time spent on document review and LCA filing)

Best for: Companies that are familiar with the H-1B process and can quickly share additional documentation after cap selection.

What it entails: We will review the basic position details in order to file the LCA prior to the cap selection process. However, we will not be reviewing in-depth project documents or preparing the petition until the cap selection is made. Additional review can be requested and billed at the attorneys’ standard hourly rates.

Option Three: Collect beneficiary information and prepare registration but no H-1B petition preparation until selection

Risk Level: High

Cost: High (A higher legal fee if selected for cap to accommodate the extra resources required to prepare selected filings in an expedited fashion.)

Best for: Companies who are willing to pay the higher legal fee but will only incur legal fees for the selected registrants.

What it entails: The legal team will review the beneficiary’s biographical documents to ensure accurate registration information, but will not prepare the petition, collect additional documents, or file the Labor Certification Application (LCA) unless the petition is selected for adjudication. For new beneficiaries or new positions, we can review the basic job duties and employee education and experience to determine if the position qualifies (for the attorney consultation rate). Given the limited timeframe to prepare and then file the H-1B petition, the company risks not being able to successfully resolve any problems in a timely manner prior to the filing deadline. Problem spotting and troubleshooting are much easier months before a deadline rather than a matter of days or weeks before filing. The Labor Condition Application certification processing takes seven days. The Department of Labor site may experience some technical issues during peak use and in the past has crashed during high volumes of certification requests. We will not be able to submit the H-1B petition without the certified LCA.

Additional Considerations During Decision Making

USCIS Policy Memo on Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)

On September 11, 2018, USCIS enacted a policy memorandum that allowed adjudicators to begin denying applications, petitions, and requests without first issuing an RFE or a NOID in an attempt to eliminate frivolous or substantially incomplete filings, or “placeholder” filings. The memorandum states that if all initial evidence is not submitted during the original filing, USCIS may use discretion to deny the benefit request immediately. Some companies and attorneys were sending petitions with only the most basic information and expecting to respond to an RFE later, but that practice is now likely to result in an outright denial.

Reversal of Cap Selection to Benefit Advanced Degree Holders

The portion of the H-1B registration rule implemented in April 2019 reversed the order in which H-1B petitions were selected under the regular cap and advanced degree exemption. Under the new rule, USCIS counted all applicants towards the estimated number needed to reach the regular H-1B cap first and then selected applicants eligible for the master’s degree exemption. The switch resulted in master’s degree holders accounting for 63 percent of petitions being selected this spring, an 11 percent increase over 2018.

Some employers that have relied on bachelor’s degree holders will likely have a lower proportion of their registrations selected for adjudication, while employers concentrating on advanced degree holders will have better chances in the lottery.

Applicants with Foreign Degrees

While foreign degrees are acceptable as long as they are equivalent to U.S. degrees, USCIS requires credentials evaluations to be performed. If your foreign workers plan to utilize their foreign degrees to qualify for the regular or master’s cap, the legal team should evaluate their education and experience to determine whether a credentials evaluation is required. Once the credentials evaluation is received, the attorney should also compare the results with the H-1B position to determine the likelihood the individual qualifies for the role.

USCIS Filing Deadline

USCIS has yet to finalize the actual filing window(s) for cap cases selected for adjudication. Ideally the window will be several weeks spread out throughout the year (perhaps staggering employers in different windows). The filings must be early enough to allow plenty of time for RFEs and responses ahead of the October 1 start of the fiscal year, but late enough to allow some additional preparation after the cap selection is completed by March 31, 2020. If the department decides to maintain the beginning of April filing window for all employers, there will be a scramble to file LCAs, collect documentation, and finalize petitions in days or a couple of weeks. (For comparison, under the current cap selection process most companies begin preparing in January for the April 1 filing deadline.) USCIS stated that more information would be available in the “coming weeks” but it is risky for employers to keep waiting for more information without making some preparations in advance of the registration process.

Industry and Company-Specific Business Concerns

Challa Law Group is known for its specialized immigration strategies, customized to the business needs of our clients and constantly updated to meet the shifting immigration regulatory environment. We have filed H-1Bs for workers in healthcare, education, information technology, insurance, accounting, and other unique industries. Even within each field, each company has its own strengths and labor requirements that are important to highlight when filing petitions and applications for employees that will help you grow your business. Contact us at info@challalaw.com to discuss the challenges your company faces so we can help build your custom H-1B registration strategy.

[1] https://nfap.com/wp-content/uploads/2019/10/H-1B-Denial-Rates-Analysis-of-FY-2019-Numbers.NFAP-Policy-Brief.October-2019.pdf

[2] https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=1615-AC13