The much-anticipated change to the H-1B petition process has finally arrived. While the substantive law governing H-1B visas has not changed, the recent change implemented by the US CIS is procedural. Employers are now required to go through a pre-filing online registration of their prospective H-1B employees who will be selected for the H-1B visa numbers through lottery. The employers can only file petitions for those employees who have been selected through the lottery. The change will directly affect how H-1B petitions are prepared, and the following procedures are recommended for the upcoming 2020-2021 H-1B filing season.
STAGE 1: INITIAL REVIEW AND ANALYSIS – January 1 - March 1, 2020
Document Collection. The employer begins the process by gathering information about the job offer and the prospective employees and collecting documents. Because there will only be 90 days after the lottery to complete the applications, it may be a good idea to gather all the supporting documents at this initial stage.
Eligibility Review. As the employer provides documents, the attorney representing the employer will review them to determine whether the position is a specialty occupation, the wage is the prevailing wage, and the employee qualifies for the job. They will analyze the job offer and the employee’s qualifications to see whether the job and employee qualify under the H-1B regulations. This must be done before the registration.
The pre-registration analysis is of great importance. First, a successful registration should lead the employer to file an H-1B petition. If the position or the foreign national does not meet the legal requirements, there is no need to go through the registration process. Second, a pattern or practice of failing to file petitions after the lottery selection may result in an investigation by the government. In certain cases, civil or criminal penalties may be imposed against the employer. Careful review and analysis before registration will avoid these potential problems.
Anticipated System Inoperability. The registration software has not been tried, and no one knows whether it will actually work properly. If the system breaks down and becomes inoperable, the CIS may suspend the registration process. It is uncertain exactly what the CIS would do in this scenario, but it is anticipated that they would continue to follow the same procedures as last year. Since no one knows if the system will malfunction until after registration opens, it is advisable to be prepared ahead of time for system inoperability. For this reason, the employer may want to prepare the petitions the same way as in previous years, while following the new procedures to move through the registration process as described in Stage 2 below.
STAGE 2: REGISTRATION - March 1– March 20, 2020
Online Registration. The employer or their attorney needs to register the prospective H-1B employees on the U.S. CIS website: https://my.uscis.gov/. They will establish an account on this portal and get ready for registration. To complete the registration, they will need the following information:
a. Employer Information:
Legal name of company
EIN number
Office Address
Legal name, title and contact information of authorized signatory
b. Employee Information:
Legal name.
Gender
Degree level
Country of birth and citizenship
Passport number
The registration may be completed by the employer or by the attorney representing the employer. If it is completed by the attorney, an electronically submitted G-28 form is required. Based on the information available, the G-28 is an online form that will require the employer’s authentication.
Registration Fee Payment. The USCIS registration fee is $10 and may be paid by the employer or the attorney representing the employer.
STAGE 3: APPLICATION PREPARATION – Starting March 21
If the petitions have been completed under Stage 1, then they may be filed after the lottery selection has been concluded. However, if the employer chooses not to complete the petitions initially, they should be prepared following the steps as provided in Stage 3.
Labor Condition Application (LCA). The LCA is a prerequisite to filing the H-1B petition and will take time to secure. This makes it advisable to prepare and submit the LCA as soon as possible in the petition preparation process. If the LCA is not filed under Stage 1, it must be prepared and submitted immediately following the lottery. The employer’s attorney can prepare LCA’s for employees selected via the lottery.
There may be system problems or other unexpected delays with LCA processing. Many applications will be filed at the same time using a new filing system set up by the DOL. Since the period for submitting the H-1B petitions is limited to 90 days of the lottery selection, it is highly advisable to prepare and file the LCA’s in Stage 1.
H-1B Petition Preparation. Once an employer receives the selection for the visa number through the lottery, the employer will only be given 90 days to prepare and submit the H-1B petitions.