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Erickson in the News: Next H-1B Lottery Likely to Feature Electronic Preregistration

October 4, 2019

  • Uncertainty of exact timing could undo expected cost savings
  • Past problems with electronic filing systems has some attorneys concerned about reliability

A new electronic preregistration process that’s likely to be part of next spring’s H-1B visa lottery is bringing additional uncertainty to what’s already a highly competitive and time-consuming process.

The electronic preregistration process, announced in a January regulation, is designed to save employers time and money by requiring only those selected in the H-1B lottery to file a full petition. Currently, all employers seeking to sponsor H-1B workers must file, on paper, a complete petition along with supporting documentation.

U.S. Citizenship and Immigration Services intends to move forward with preregistration for the fiscal year 2021 H-1B cap season, acting Director Ken Cuccinelli said in response to an August letter from a group of immigration and business advocates. That likely means the program would be in place in late winter at the latest, provided that further testing goes well.

The USCIS conducted “an initial round of usability testing” and worked on updated designs in early September, Cuccinelli said. There will be “further outreach and training” as well as guidance on how to use the system, and a Federal Register notice will go out prior to implementation, he said.

At least some immigration firms have already started prepping for the lottery, which traditionally takes place in early April of each year. The USCIS has run the lottery for the past several years as demand has far outstripped the annual supply of 85,000 H-1B specialty occupation visas.

Inserting a new requirement in the middle of that preparation period could leave attorneys and their corporate clients scrambling at the last minute, especially smaller firms with fewer resources to assemble their petitions quickly.

Underlying Basis Negated

“The longer the agency waits to notify the public, the more likely U.S. employers and immigration practitioners would have to start going about the process as they would in the past,” said Diane Rish, associate director of government relations at the American Immigration Lawyers Association.

That “negates the underlying basis” of the change, which was to provide cost savings to employers, she said.

“The preregistration process is intended to be a collaborative effort between USCIS, petitioners and concerned stakeholders to ensure that the electronic registration requirement creates a more efficient petition process and effectively reduces overall costs for petitioners who currently spend significant time and resources preparing and submitting full H-1B cap petitions without knowing whether these petitions will be accepted for processing by USCIS due to the statutory numerical allocations,” a USCIS spokesman said in an email.

There are also some questions surrounding the extra $10 fee that the USCIS has proposed to fund the system, Rish said. That fee still needs to be finalized.

Reliability Questions

In addition to the uncertainty over the timing of deployment, immigration attorneys are concerned that the system won’t be able to handle the volume of expected registrations.

The USCIS has promised a two-week preregistration window for employers, but “I absolutely think everyone’s going to go in on day one,” said Hiba Anver, an attorney with Erickson Immigration Group in Arlington, Va.

“H-1B cap season by nature is a race,” and there’s no reason for a change in attitude just because a new process is in place, she said. “That’s just the nature of the beast.”

And that initial rush could spell trouble from a technological standpoint, especially for an agency that’s struggled for years to shift from paper-based forms to electronic intake of applications.

“There is no reason to be optimistic about the functionality of the preregistration tool in light of what we’ve seen in the past,” Anver said.

She also pointed to difficulties at the Labor Department, which in January experienced a weeklong system crash after tens of thousands of employers attempted to log in to file H-2B visa applications in the first five minutes they were allowed. H-2B visas, which go to workers in seasonal, nonagricultural industries like landscaping and resorts, also have seen a surge in popularity that’s resulted in a lottery process at both the DOL and USCIS.

“USCIS will continue user-testing until the system is fully operable and ready for use,” an agency spokesman said in an email. He added that the regulation authorizing the new process allows the USCIS to suspend preregistration “during any fiscal year in which USCIS may experience technical challenges with the H-1B registration process and/or the new electronic system.”

Weighing Options

But Anver said that still means employers and their immigration attorneys will have to weigh whether they prepare for the worst and pull together a complete H-1B petition anyway, or wait until they’re sure preregistration is up and running and that they’ve been selected in the lottery.

Larger firms can handle the “mad dash” of preparing a full H-1B petition only after selection in the lottery, Anver said. Under the regulation, employers have 90 days to file a petition after being selected in the lottery based on the preregistration.

But smaller firms with limited resources may have a harder time, she said. In those cases, they may wind up preparing full petitions as they’ve always done, and therefore don’t see any time or money savings from the change, she said.

AILA’s Rish, however, thinks those cost savings likely will come after the new process gets up and running. If preregistration is successful, employers and attorneys will “modify their processes accordingly,” she said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com