It is no secret that the H-1B application process has undergone a number of changes over the last year, including a switch to a fully electronic registration, paying a registration fee, and changes to the lottery system. This article gives an update of what we know up to this point as well as tips for applying as successfully as possible. For a basic overview of the H-1B visa please read our previous article.
Registration for the H-1B is now submitted electronically via the USCIS portal (https://myaccount.uscis.gov/users/sign_up). An attorney may register on behalf of an employer and should be able to manage one or more clients under that account. To register, an employer must pay a $10 registration fee at http://www.pay.gov using a debit or credit card. An employer may batch payments if they prefer to do so. Once submitted, a confirmation will appear in the portal to show that the registration is being processed.
This year, the lottery is being conducted in reverse order in an attempt to increase the number of United States master’s degree holders obtaining an H-1B visa. While historically, a lottery was first conducted for U.S. master’s degree holders, and those who were not selected were put into the larger “pool” of applicants, this year all applicants will be put into the pool, and any U.S. master’s degree holders who are not selected in the first round will be put into the pool of 20,000 slots geared specifically toward them. If an employee is selected, a notification of acceptance will appear in the portal, along with a notice of confirmation that must be printed and submitted with USCIS H-1B petition filing. The USCIS have said they will create a wait list for those who are not picked, so even after the lottery is conducted, employers should continue checking the portal. In the unlikely event that USCIS does not receive enough applicants, they will reopen registration. At this time, we do not know whether an employer will be notified if their employee has not been selected.
The USCIS will provide training and guidance on how to use the registration system for those who would like it.
Required Registration Information
Necessary registrant information includes the registrant’s legal name, EIN, Primary U.S. office, and the legal name, title and contact information of the authorized signatory. Necessary beneficiary information includes the beneficiary’s legal name, gender, education (do they have a U.S. master’s degree or higher? Beneficiary may need to establish eligibility at the time of registration), date of birth, country of birth, country of citizenship, and passport number.
No information regarding offered position such as job title, minimum requirements or job description is requested at this point.
Things to know about H-1B Registration
Establishing eligibility is not required for registration, however one must establish eligibility upon filing the benefit request. It is important to have an attorney assess and evaluate the position and credentials of the beneficiary prior to submitting the electronic registration.
There is a 90-day filing window, but we are not sure when it will begin. It is therefore best to be as prepared as possible so your client can be one of the first to submit their petition. USCIS will work in a first-in/first out system during 90-day window. We are not sure whether premium processing will be available, so it is important to have petitions ready to file when window opens if OPT expires before 10/1/2020. In other words, employers should know which employees need to be filed first. Keep in mind that submitting an H-1B registration does not maintain status.
Registrations CAN be edited PRIOR to submission, but once the registration is submitted, the submission cannot be edited any longer. We are not sure how the USCIS will handle typos.
An employer can submit one registration per beneficiary. If an employer is found to have submitted more than one, all their registrations will be canceled. There are no substitutions allowed. If a company has multiple entities with different FEINs, the company can submit under each entity as long as there is a legitimate business need and multiple real and separate job opportunities. If it is found that this is not the case, petitions could be denied or revoked.
Time-line for H-1B Cap
- December 2019-February 29,2020: Initiate H-1B sponsorship process.
- Sunday, March 1-Friday, March 20, 2020: Register H-1B sponsored foreign nationals.
- After March 21, 2020: Lottery will be conducted and the 90-day filing window will open. File petitions for those selected in H-1B lottery, remembering that only those who have been selected can file.
- On or after Oct 1, 2020: Onboard Approved H-1B workers. We expect the H-1B filing window will open either on or after April 1, although we do not know for certain at this time.
Prospective Increase in Government Filing Fees
The DHS is expected to implement a new fee schedule in early March, 2020. As of now, the proposed government filing fee for H-1B is $560, which is an increase of $100. While this particular detail has yet to be settled, the following fees are confirmed.
- $10 registration fee (if the beneficiary is subject to the cap)
- $500 fraud prevention and detection fee
- $1500 ACWIA filing fee (if petitioner has 26 or more employees)
- $750 ACWIA filing fee (if less than 26 employees)
- $1440 premium processing in 15 calendar days
Avoiding an H-1B Request for Evidence (RFE)
It is getting increasingly more difficult to receive an H-1B work visa. Last year, USCIS shared that 60% of H-1B cases are getting RFEs and 40% of cases that receive an RFE are getting denied. In light of these rather alarming statistics, here are some areas to double check to avoid harmful scrutiny:
Specialty Occupation. This is the area most likely to attract an RFE. Did the petitioner establish that the position qualifies as a specialty occupation? Is the job description sufficiently detailed? Does it correspond with the provided SOC code, the degree related to the position, and relevant coursework listed?
Employer-Employee Relationship. Did the petitioner establish that they have a valid employer-employee relationship with the beneficiary? Did they specify that they have the right to control the beneficiary’s work, including the ability to hire, fire, or supervise the beneficiary, for the duration of the requested validity period?
Availability of Off-site work. For those employees who will be working off-site. Did the petitioner establish that the beneficiary has specific and non-speculative work in a specialty occupation?
Maintenance of Status. Has the employee property maintained their current status?
Availability of work (in-house). Did the petitioner establish that they have enough specific work in a specialty occupation to give the beneficiary a legitimate position? For start-ups, was additional documentation included to establish ongoing work?
LCA Corresponds to the Petition. Is the LCA properly certified? Does it correspond to the offered position and to the terms of the petitioner (prevailing wage, start and end dates, worksite match LCA)? Does the beneficiary’s degree match the SOC code requirements? Furthermore, as their debate about whether or not Level 1 positions really qualify as specialty occupations, we recommend the petitioner use Level 1 Prevailing Wages with caution.
Itinerary for multiple work locations. If the company requires work to be performed in multiple locations, did the petitioner submit an itinerary with the case?
Pointers for H-1B prep
In the current climate, it is advantageous to be as prepared as possible. Job descriptions need to be more detailed than before, and must include a detailed description of specific tasks aligned with the OOH, as well as incorporate how the beneficiary’s specialized knowledge and coursework is needed to perform the job duties. Furthermore, employers should be careful to analyze and select the most fitting SOC code. See that the selected occupational code matches the job description, job title, and the beneficiary’s educational background. Sometimes selecting a code is straightforward, sometimes it is more difficult. In more difficult cases, consider the job title and job description. Is there any flexibility? Concerning Level 1 Wage, petitioners need to be able to justify why a Level 1 occupation qualifies as a specialty occupation. Petitioners should bolster their arguments. Why would an individual need a degree to perform the job? Provide specific coursework, and perhaps a detailed job chart. For new companies (in business for less than 10 years) and small companies (consisting of less than 25 employees), USCIS is on the alert for fraud. Therefore, it is beneficial to include additional documentation of current, active business presence and ongoing business activities, such as contracts, quarterly wage reports, invoices, etc. For petitioners filing for remote/multiple worksite petitions, it’s helpful to include additional documentation to establish employer-employee relationship (an offer letter, performance reviews, and pay stubs) as well as sufficient evidence of in-house employment (service agreements, work orders, contacts, and the like).
The following is a list of less commonly used SOC Codes to consider using in more complicated cases:
- 15-1111: Computer and information research scientist. Job Zone 5, so consider using this code if the position in question is computer-related and requires a graduate degree.
- 41-9031: Sales Engineer. Consider using this code for marketing positions that require engineering-type degrees. If beneficiary has an Electrical Engineering degree, try to use the underlying engineering SOC code first (17-2071: Electrical Engineers).
- 17-2016: Computer Hardware Engineers. Consider this code for infrastructure/hardware computer positions.
- 15-2041: Statistician. Consider this code for positions related to data science, if the beneficiary has a math/statistics degree.
For More Information…
In the aftermath of many changes to the H-1B application process, there are still some questions that remain unanswered. However, we are committed to informing you to the best of our ability and assuring that you receive the assistance you need. For answers to further questions, explore more immigration articles regarding H-1B, or contact us directly.