The H-1B process for fiscal year 2021 presents employers and their legal counsel with a variety of new timing and process challenges in addition to potential cost savings.  The major change of note will be the insertion of a new registration process, which will be imposed starting on March 1, 2020 and ending on March 20.   The expensive filing fees for H-1B cases as well as the petitions and supporting documents are not necessary unless a registration is selected.  So, what to do when?

The registration process requires the payment of a $10 fee using the pay.gov portal after the required information for registration concerning a potential H-1B employee is provided through a myUSCIS.gov account to U.S. Citizenship and Immigration Services (USCIS).  The registration process is all online.   In addition, it does not require the prior submission of a Labor Condition Application (LCA) online via the new FLAG system of the Department of Labor (DOL), until after a registration is selected.

Let’s consider some key changes for consideration:

  1. Timing – The lottery for H-1B registrations will be run no later than March 31. Registrants should be notified electronically no later than March 31 of selection. If selected, an H-1B petition may be filed starting on Wednesday, April 1 and ending 90 days later on Tuesday, June 30, 2020. (at present)

a. Of course, to be able to file an H-1B petition for a selected registrant on April 1, the employer must be able to submit an approved LCA. The LCA is typically processed in a 7 to 10 day period, but this year that process requires the use of the relatively new online FLAG system, which has had numerous technical quirks in its ongoing implementation.  So, employers must consider whether they wish to incur the cost of LCA submissions on unselected cases by filing the LCA early before April 1.

b. The filing time frame lasts over at least a 90 day period and the submission of the petition itself with an approved LCA can be done during this time period. So, it will be important for employers to gather the necessary information required by their legal counsel on a time crunched schedule, if they decide to wait until notification of selection on or before March 31 of their registered applicants.  In addition, they must consider the additional time related problems for students on optional practical training (OPT), for example.

  1. Due Diligence and Information Gathering – The registration process requires very limited information to be provided in addition to the $10 fee payment for applicants, but the use of the online myUSCIS.gov can be cumbersome due to its authentication process and – well – we don’t know how the system will react to a deluge of registrations in a concentrated time frame (e.g. March 1 to March 20).

a. It will be important to set up myUSCIS accounts early to determine the process for submission and how to use the pay.gov site to submit the $10 non-refundable registration fee.

b. For the registration process, information for registration should be gathered as soon as possible. Note that no information about the offered job is required, but to avoid submitting non-qualifying petitions, many attorneys are requesting information about the proposed wage, title, and job duties in addition to copies of degrees early. In particular, a copy of a U.S. master’s degree for the advanced degree exemption should be considered as a required intake document for registration in addition to the applicant’s passport biographic page at least. Below is a list of registration content requirements at the moment:

REGISTRANT INFORMATION:

  • Legal name of the prospective petitioning company or organization
  • Doing Business As names of the prospective petitioning company or organization, if applicable
  • Employer identification number (EIN) of the prospective petitioning company or organization
  • Primary U.S. office address of the prospective petitioning company or organization
  • Legal name, title, and contact information (daytime phone number and email address) of the authorized signatory

BENEFICIARY INFORMATION:

  • Beneficiary’s legal name
  • Beneficiary’s gender
  • Does the beneficiary have a master’s or higher degree from a U.S. institution of higher education such that the beneficiary is eligible for the advanced degree exemption under INA 214(g)(5)(C) and requesting consideration under the advanced degree exemption?
  • Beneficiary’s date of birth
  • Beneficiary’s country of birth
  • Beneficiary’s country of citizenship
  • Beneficiary’s passport number
  1. 90-Day Filing Window for Selected H-1B registrants – This filing window will create a tremendous demand on the FLAG system operated by DOL for the adjudication of LCAs, which must be approved to file with the H-1B petition, filing fees, and support documents. USCIS has yet to announce how premium processing will be available for the petitions filed during the 90 day window.  Of course, employers should expect that requests for evidence (RFE) will continue to be plentiful.  So, if possible, employers should devote resources to collecting documentation from potential registrants in advance of selection to reduce delays during the 90-day filing window hunting documents or data. If employers choose not to do so, then another consideration is devoting additional staff to this collection of data and documents on the date of selection notification.  Attorneys desiring to reduce RFE exposure, if possible, should be expected to request more detailed information to prepare stronger H-1B petitions.

Bottom line, employers should expect a bumpy ride this year with the new online processing of H-1B applications.  Additional due diligence and data gathering before the selection notice is provided would be at least a partial antidote to H-1B seasonal stress.

Quick Reference – Comparison Timeline H-1B Season Fiscal Year 2020 to 2021

H-1B petitions can be filed no more than six months before the employment start date. (rev. Jan. 15, 2020)

Filing Dates FY 2020 Process FY 2020 Filing Dates FY 2021 Process FY 2021
Gather Support Documents for Wage, LCA, and H-1B Set up myUSCIS accounts – one attorney may manage multiple clients under one account

 

https://www.youtube.com/watch?v=l-dBAoKucbM

Obtain Prevailing Wage Determination (PWD) or use OES Collect information for registration, including U.S. Master’s degree
At the latest in March 2019 Prepare Public Access File (PAF), Post Notice, and Submit LCA March 1 to March 20, 2020 Input information for registration and pay fee $10

Use pay.govportal.  Consider PAF, Notice, and LCA submission.

March 31, 2020 Lottery run no later than March 31.
March 31, 2020 Registrants notified no later than March 31 electronically.  All registrants not selected remain on reserve for fiscal year.
April 1, 2019 – filing date

April 5 USCIS receives sufficient number  H-1B petitions 201,011

File H-1B April 1, 2020, Wed. first day for 90 day time frame ending Tuesday June 30, 2020 (estimate) May file H-1B

 

Wait for Selection and Adjudication OES wage
Prepare PAF
Post Notice
Submit LCA to FLAG system of DOL
JUNE 30, 2020 last day for submission (estimate) File H-1B on or before June 30, 2020.
Premium Processing Cap Subject Change of Status may request premium with concurrent I-907.    To begin PP no later than May 20, 2019. PP for all other cap subject not request change of status not started until at least June 2019. Wait for Adjudication Premium Processing   – Unknown yet

 

About the Author:

Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.  She serves on the AILA Board of Governors.  In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950).  She has testified several times before Congress on matters of immigration policy and border security. She may be reached in our El Paso, TX office at 915-541-9360 and you may view Kathleen’s bio here.