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A Step Forward for the H-1B Visa Application Process, Or Is It?

12/14/2018
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In an effort to modernize the H-1B Visa, the United States Citizenship and Immigration Services (USCIS) recently proposed a rule change—Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens—that will make sweeping changes to how H-1B applications are processed by moving registration online. The USCIS is hopeful that this transition will result in less paperwork, increased efficiency, and decreased costs. While we at GoffWilson believe in the long-term value of streamlining and modernizing the H-1B process, the rule itself, along with its timing, has created some potential pitfalls that employers must be aware of. 
 
Online Registration Process
 
Under the USCIS’s proposed rule, sponsoring employers would need to electronically register applicants online before submitting an H-1B petition. The online registration process will require basic information from both the employer, such as name and address, and the beneficiary, like name and contact information. Additionally, the USCIS will need to know if a candidate has obtained a master's degree (or higher) from a U.S. institution. If the USCIS receives more petitions than required to fill the capped number of 85,000 H-1B visas granted per year with 20,000 of those reserved for applicants with a master's degree or higher, they will randomly select enough applicants from the registration to meet the cap. Those selected will have 60 days to submit full H-1B petitions along with an approved Labor Condition Application (LCA). 
 
Possible Problems with Online Registration 
 
What is most alarming for employers about the proposed online registration is the timing. December and January are typically the times of the year when businesses begin planning for hiring foreign-born employees—the new rule is open for public comment through January 2nd, meaning that the final rule regulating the process is likely to be published just weeks before the filing period opens, leaving employers in limbo as to how the H-1B Visa application process will be handled. Additionally, well-advised employers will have already begun preparing petitions following the old process, to avoid the increasing number of Requests for Further Evidence (RFEs) and Notice of Intent to Deny (NOIDs) by this point anyway, nullifying any time or resource savings. 
 
In addition to timing, there are a few other notable issues with the USCIS’s proposed online registration. The first issue is the ease with which employers can register for an H-1B Visa—because of the minimal amount of information required for employers to register online, the registration system could become flooded with non-meritorious registrations. Another issue is with the proposed staggering of filings by the USCIS. While staggered filing will allow the USCIS to better manage their workflow, it could worsen process delays already present in the current system, and cause difficulties for employees hoping to begin work on October 1st. 
 
What Employers Can Do To Prepare Themselves 
 
The immigration attorneys of GoffWilson believe the smart move for employers is to prepare for business as usual and treat this year’s H-1B season as they have in years past. That means companies should have well-evidenced and complete H-1B petitions ready to be submitted on April 1st. Employers should also be ready to register under the new system when, and if, it goes live. By doing this, employers’ interests are protected in both eventualities—more so, by going through the full H-1B petition process, employers can ensure the merit of their application and will be ready to go if their applicant is chosen.
 
Why GoffWilson 
 
H-1B Visa filing season always gives businesses a lot to consider, and the USCIS’s proposed new rule increases concerns exponentially. GoffWilson solely practices immigration law and has successfully assisted thousands of employers and employees with their H-1B petitions. Contact GoffWilson today and put our decades of experience to work for your company.

Filed under:H-1B Visa, Immigration Law