H-1B Alert: Significant Changes are Coming
Just after 5:00 PM (EST) on December 6, 2019, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will implement an H-1B registration process for fiscal year 2021 cap-subject petitions. The initial registration period will run from March 1 – March 20, 2020 and upends longstanding government practice for what many have referred to as “H-1B season” from January through early April each year. There are more questions than answers at this writing, but basic details now available make clear that the new process is likely to prove tumultuous and uncertain for would-be H-1B employers.
As background, the H-1B category was established pursuant to 1990 amendments to the Immigration and Nationality Act (“INA”), making an H-1B visa available to an alien “who is coming temporarily to the United States to perform services… in a specialty occupation… or as a fashion model… of distinguished merit and ability.” An H-1B visa is also available for an alien to perform services of an exceptional nature requiring exceptional merit and ability relating to a Department of Defense (“DOD”) cooperative research and development project or co-production project. A “specialty occupation” is one that requires “theoretical and practical application of a body of highly specialized knowledge, and [ ] attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation” in the U.S.A.
The 1990 amendments increased agency oversight, in part by establishing a first-time role in the H-1B program for the Department of Labor (“DOL”), historically the protector of employee rights in the workplace. Generally stated, this involves a series of petitioner attestations and obligations imposed by the mandatory Labor Condition Application, Form ETA labor condition application (“LCA”), which must be certified by the DOL before an employer’s H-1B petition may be filed with USCIS.
The 1990 amendments also imposed, for the first time, a 65,000 annual limit on the number of aliens who could be newly sponsored in the H-1B category each fiscal year (the cap does not apply to a person already holding H-1B status). The 65,000 cap, set arbitrarily and without any statutory scheme for increases based on actual employer need, restricted the number of foreign professionals who may be sponsored annually as aliens in H-1B specialty occupations.
It was on January 31, 2019 that USCIS published a 70-page Final Rule in The Federal Register, amending regulations to require that petitioners seeking to file cap-subject H-1B petitions first electronically register with USCIS. The Final Rule, which is online at https://www.govinfo.gov/content/pkg/FR-2019-01-31/pdf/2019-00302.pdf, also amended the process by which USCIS selects cap-subject petitions, so that the “regular” cap applying to bachelor’s degree holders is conducted first, and the “advanced degree” or masters cap thereafter. That part of the rule went into effect on April 1, 2019 and represented a change from prior practice of first selecting petitions among the bachelor’s degree pool. The premise for the change is an expected beneficial increase in the number of beneficiaries holding a U.S. master’s or higher degree.
The registration period, however, was suspended for FY2020 H-1B filings on a number of grounds as cited in the Final Rule - including inadequate time to test and troubleshoot such a system, that the “agency’s track record when it comes to rolling out technology has been disappointing,” and concerns that the system could be “flooded with registrations.” The December 6 announcement claims that those technological challenges have been overcome in that USCIS “has completed a successful pilot testing phase.” All is not settled, however, since the agency also noted it has yet to complete “the current development phase.”
The Final Rule stated that “the regulation will allow attorneys to submit registrations on behalf of petitioning clients, upon completion of a Form G–28, Notice of Entry of Appearance as Attorney or Accredited Representative, for each petitioning client.” The government’s recent announcement states that employers “or their authorized representatives” may complete the registration process. However, an exemplar of the registration form made available to members of the American Immigration Lawyers Association (“AILA”) allows for only a would-be petitioner, or its agent, to submit an H-1B Registration. There is no provision for attorneys to submit an H-1B Registration on behalf of a client, and there is no guidance for filing a Form G-28 authorizing attorney representation.
The exemplar provided by USCIS defines an employer as a “Person or entity in U.S. that:
- Engages a person to work in the U.S.;
- Has an employer-employee relationship with the beneficiary: and
- Has an EIN.”
This suggests that any separate business entity with a distinct Federal Employer Identification Number Each registration may include as many beneficiaries as desired. It is important to note that each beneficiary must be named and registrants must also include each beneficiary’s date of birth, country of birth, country of citizenship and passport number (unless the beneficiary “does not have a passport number”). These details are believed necessary, according to the Final Rule, to preclude duplicate registrations for the same beneficiary in the same fiscal year. It is unclear whether or how this could affect two or more distinct employers naming the same beneficiary, since guidance states that a registrant may submit only one registration per beneficiary in any fiscal year. If a registrant submits more than one registration, “all registration filed by that registrant relating to that beneficiary for that fiscal year will be considered invalid.”
A registrant can start the registration process on one date and complete it at a later date. Whenever “next” is selected to continue the registration process, USCIS will automatically save the information until the registration period closes. Before submitting the registration, the petitioner must certify its intent “to file an H-1B petition on behalf of the beneficiary named in this registration if the beneficiary is selected.” Business needs change, as do the personal circumstances of beneficiaries, so it is unclear if any penalty will attach if an employer ultimately decides against filing an H-1B petition on behalf of a selected beneficiary, or a beneficiary decides to forego such sponsorship.
Each beneficiary will be assigned a registration number associated only with the submitted registration; that number cannot be used to track case status. Instead, a petitioner with one or more selected beneficiaries should sign up for a USCIS account through which it can track case status using that agency’s Cast Status Online. To create an account, go to https://myaccount.uscis.gov/ and provide the required information.
The $10 registration fee was the subject of separate rulemaking on November 8, 2019 (the Fee Rule is online at https://www.federalregister.gov/documents/2019/11/08/2019-24292/registration-fee-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject). There, it is clear that the $10 fee is not a per-employer expense but applies to each named beneficiary. Therefore, if an employer’s registration names five beneficiaries, the applicable fee would be $50. Also, the November 8 rule states that the government will use pay.gov as the payment portal, and notes that the system will permit payments only from bank accounts (checking or savings), credit cards and debit cards, and that “batch payments” covering multiple registrations can be submitted at one time. The registration fee is separate from, and addition to, any H-1B filing fees that will apply to any selected registration; there will be no refunds for those not selected.
While the Fee Rule states that “[t]he pay.gov screen will be seamlessly linked to the registration platform,” the December 6 announcements are silent on this important aspect of the electronic registration requirement.
Help With Your H-1B Questions
A formal announcement, presumably with much further detail regarding registration form completion, fee payment, case tracking, attorney representation, timing of LCA filings and more, is to be published in The Federal Register in the weeks ahead.
The Immigration Practice Group at Whiteman Osterman & Hanna LLP will keep you updated with developments and stands ready to assist you with all your H-1B matters.