On December 3, 2018, the United States Citizenship and Immigration Services (USCIS) published a proposed rule that could change the way the H-1B cap lottery system will work.
Check out the full text of the proposal - it’s long but there’s a tl;dr summary up top.
Importantly, USCIS is taking public comment until January 2nd. And they actually read them! I tracked the Department of Labor’s proposal last year to change the Labor Condition Application (LCA) form and was pleasantly surprised to see them taking public comments into account when they issued their final decision. You can see my analysis of that here.
How it works today, in short.
Today, there’s an annual limit of 85,000 new H-1B visas - organizations rely on the H-1B system to hire and retain highly qualified computer engineers, financial analysts, marketing professionals, etc. Over the past 5 years, an average of 192,918 cap-subject H-1B visa petitions have been filed each year, prompting the USCIS to selects a subset of these petitions to review and adjudicate.
Between government filing fees, legal fees and ancillary fees such as document translation and shipping, H-1B visa petitions cost employers thousands of dollars with no guarantee of selection or approval. Hiring an H-1B worker, therefore, is an expensive gamble.
What the government is proposing, in short.
The USCIS proposal creates an online system that will require employers to register their intent to hire a specific H-1B worker. It’ll be free to use, and employers will need to provide only basic, mostly biographic, information. Once USCIS receives enough registrations, they’ll stop accepting new ones, conduct a lottery and notify petitioners whose registrations were selected. These petitioners will then have 60 days to complete and submit a full H-1B visa application.
USCIS claims that this will create cost savings for employers who will be able to enter the H-1B lottery without spending time and money on an entire visa petition. They also claim that it will create efficiency gains for the agency and its staff.
- Add alt text
An analysis of the proposal.
Generally speaking, I’m a huge proponent of automation. As a former immigration attorney and the founder and CEO of LaborLess, an electronic LCA and PAF platform, the fact that the federal government is looking to digitize at least part of the H-1B visa process is a great sign for and overwhelmingly manual visa process.
Too often automation is within grasp, but organizations, especially governmental bodies, resist, and not because they’re unable to successfully modernize, but more so because they’re averse to change.
But this proposal may create more issues than it solves. Here are some of the analyses I’ve read that have stuck with me:
- Free pre-registration may actually flood USCIS with more petitions. Whereas the current process, and associated cost filters for the strongest candidates, i.e. those most likely to be granted an H-1B visa, free pre-registration would enable companies to register on more of a whim and actually weaken the talent pool.
- Beneficiaries may accept multiple job offers to increase chances of getting an H-1B. Since registration will be free, employers will be able to register a potential H-1B worker without much effort. It follows that candidates looking for an H-1B visa will likely accept positions with multiple employers to try and get their name in the lottery as many times as possible.
- Companies may end up spending more time and money on H-1B petitions. Given that submitting petitions for the FY 2020 H-1B cap season is just a few months away and there’s still no clarity from USCIS, companies may spend the time and money preparing full H-1B petitions just in case.employers and law firms always do as much as possible in advance
Employers and law firms always do as much as possible in advance
Potential Effects on the LCA
Today, employers must submit an LCA to the US Department of Labor (DOL) for certification before they can submit the H-1B application. And while H-1B visa petitions can only be filed starting April 1, employers often start submitted LCAs for cap cases as early as January. In fact, almost 50% of LCAs are submitted in February and March.
With the proposed H-1B pre-registration process, employers will not be required to obtain a certified LCA before their H-1B is “selected” by the new system. However, as soon as their H-1B is selected, they will have to scramble to submit the LCA, comply with LCA posting requirements and compile the rest of the visa petition within the 60-day window between acceptance and filing deadline.
So here are my thoughts on how H-1B pre-registration might affect the LCA process:
- Employers will still want to get ahead of the game by submitting LCAs in advance. This means that despite the government’s claim that employers won’t have to do much unless and until their H-1B petitions are accepted, the truth is that employers and law firms always do as much as possible in advance, including submitting and posting LCAs and creating PAFs just in case.
- More LCAs than ever may be submitted to the DOL if free pre-registration ultimately creates more overall H-1B volume.
- DOL may end up charging a fee for LCA submission. This proposal language made me wonder... “A registrant therefore could wait until they have been notified of selection before submitting the LCA to DOL for approval... DHS is not proposing a fee for registration at this time.” (Emphasis mine.) They’ve thought about it before, and they’re clearly thinking about it again. They aren’t charging for it now, but if pre-registration increases volume, it’s a clear revenue stream for the DOL.
My conclusion is that H-1B pre-registration is a great idea in theory, but needs to be tested and iterated on before being rolled out as a mandatory step in the complicated H-1B visa process. And while the focus is on how USCIS will be impacted, immigration practitioners and professionals should also consider their strategy regarding their LCA process.