USCIS is introducing a new process for H-1B cap-subject applications being submitted in 2020 (Fiscal Year 2021).
Update 01/27/2019: USCIS is hosting a webinar for registrants to introduce the new CAP registration process. Further information can be found here.
The Context
The total number of new H-1B visas that the U.S. government may issue each year is “capped” at 85,000 (though certain applications are exempt from this cap). Of this overall total, 20,000 are reserved for applicants who have earned a master’s degree or higher from a U.S. college or university, with smaller numbers set aside for nationals from Chile and Singapore.
In recent years, the demand for H-1B cap visas has far exceeded the supply: in 2019, over 200,000 applications were received. As a result, in order to determine which applications will be processed, USCIS has gathered all applications received during the first 5 business days in April (the earliest possible submission period each year), and ran a lottery. Cases selected in the lottery would receive Receipt Notices in the mail within a few weeks. Cases that were not selected would be mailed back to the sender later in the summer.
The Problem
The system used in recent years created a number of problems and was highly inefficient. Last year, for example, USCIS received over 200,000 full H-1B applications within the space of a few days, only to mail roughly 60% of these applications back, unopened, a few months later. There was no reliable mechanism to inform applicants whether their cases had been selected, other than to mail a Receipt Notice (which could go missing in the mail) or send their application back (which did not happen until months later). This led to extended periods of uncertainty for applicants who were unsure if their case had even been selected, and had to plan their career and immigration strategy without this critical information. While there were other ways of identifying whether a case had been selected, such as checking whether the filing fee checks had been cashed, they were often impractical or unreliable.
The Solution?
To address these challenges, USCIS is introducing a new system that requires employers register in advance the names of any individuals who they seek to file an H-1B CAP application for, and pay a $10 registration fee. This registration period will begin on March 1st and is expected to run through March 20th. Assuming the number of registrations exceeds 85,000, which is expected, USCIS will run the lottery using these registrations (rather than the completed applications). Selected registrations will be informed electronically by the end of March, and employers will then have 90 days, beginning April 1st, to prepare and submit complete H-1B applications.
The advantage of the new approach is that complete H-1B applications need only be prepared and submitted if and when an applicant has been selected in the lottery - once it is known that the application will be processed. This process will also spread out the receipt period for applications from 5 business days to 90 calendar days, reducing the stress on both the sending and receiving entities.
There are concerns with the new system, however: USCIS has not yet released final information about how the online registration process will work. Historically, the introduction of new online filing systems for immigration processes has resulted in painful teething periods on both sides, during which bugs are removed and processes simplified. This would be particularly problematic in the H-1B cap context: a suspension of the online registration process and reversion to the traditional system would cause significant problems for employers and applicants. Further, due to the time and cost of preparing a complete H-1B application, the traditional system has required employers think carefully about who they would like to sponsor. The simplified system might encourage speculative registrations, for whom H-1B applications may not ultimately be filed, thereby impacting the process for serious applicants.
Follow me on Twitter for the latest U.S. immigration news.
Note: The information in this post is general in nature, does not represent legal advice, and should not be relied on to determine immigration strategy and/or prepare an immigration application for a U.S. government agency. Immigration law is a rapidly changing field and each case has its own facts that will determine the appropriate strategy.
Comments