Photo by Markus Spiske on Unsplash

On February 3, 2020 a coding flaw in a mobile app delayed the tabulation and reporting of the Iowa Democratic Caucus results.

This high-profile failure reminds us that technological glitches can show up any time but especially when a system is put to extreme use.

This reminder is the guiding principle for my H-1B preparation strategy this year. My strategy involves planning for glitches with back up measures to ensure as smooth an H-1B filing experience as possible for my clients.

As you are about to see, new changes to the H-1B filing process may introduce several speed bumps to the process of filing petitions.

Electronic Registration Process

This year the United States Citizenship and Immigration Service (USCIS) is implementing several changes to the H-1B petition process.

In early December I reported USCIS’s new requirements that employers register electronically in advance of filing an H-1B petition and pay a $10 registration fee. USCIS officially announced this new process in the Federal Register on January 9, 2020.

Registration will happen via the organization’s myUSCIS online portal. For each client I represent I will be filing a G-28 form through that portal as well.

USCIS launched the myUSCIS portal in 2015. The portal currently permits filing of forms such as G-28, I-90, N-400, N-600 and others, but as of this writing has not yet enabled H-1B registrations.

The $10 registration fee will be paid on a separate platform, pay.gov. Our experience with pay.gov is that the system is clunky and not easy to use. It will be interesting to see how it fares as users flock there to pay their registration fees.

Since October, the Department of Labor (DOL) has been using its new Foreign Labor Application Gateway (FLAG) system to accept Labor Condition Applications (LCAs) which need to be in place before filing H-1B petitions. We’ve successfully filed LCAs on FLAG.

Three different systems will play a role in the H-1B cap season this year – FLAG, pay.gov, myUSCIS – two of which are relatively new to their processing.

Will the systems need to talk to each other? We don’t know yet if myUSCIS will be able to see from pay.gov that the registration fee has been paid. As someone who has occasionally been challenged to get my computer to talk to my printer, this question looms in my mind.

With three different systems, the newness of the systems and the uncertainty of how they will function with high volume use, the potential for glitches feels high to me.

New H-1B Filing Timeline

Also new this year is USCIS’s schedule for the H-1B petition filing process.

While lawyers and other representatives can establish myUSCIS accounts now, USCIS will only accept initial H-1B registrations from March 1 – March 20, 2020. Given the newness of the system and the unknown number of registrations that will be submitted, I will be aiming to submit registrations during the early part of this time window.

Between March 20 – 31, 2020 USCIS promises to conduct the H-1B lottery and to inform registrants who have been selected by March 31. Selected registrants then have 90 days beginning April 1 to submit their petitions.

USCIS included a clause in their Federal Register announcement that would allow it to suspend the registration requirement if the system were found for any reason to be “inoperable.” If that were to happen, USCIS would likely return to the prior system and accept paper petitions to count toward the cap on a first come first serve basis. That means the cap could be reached in just a few days as in past years.

Given this clause and the inaugural nature of this registration process, I will be preparing paper petitions for my clients as a back up to ensure any registration suspension would not prevent filing a petition quickly.

Ensuring a Strong H-1B Petition

Please know that being selected during the registration process is only an invitation to submit an H-1B petition. It does not increase the chances that a case will be approved. Petitioners still need to put forward a strong case to gain approval.

Each registration will require the registrant to attest that the employer intends to file a petition for every selected beneficiary. USCIS stated that employers who fail to submit H-1B petitions for selected beneficiaries may be subject to investigation.

This statement is intended to deter fraud and abuse of the system, but could at the extreme also harm an honest employer courting a foreign national who opts for a better offer at another company like Google. The honest employer would be risking the possibility of a government audit.

For this reason I urge you to vet candidates carefully. Do as much as you can legally to determine how much your candidate is invested in working with your company and is likely to join or stay if the visa comes through.

Strong petitions also include companies that can show positive revenue streams. Companies that are not yet generating revenue should avoid prematurely filing petitions even if their candidates are from a country with a significant backlog of visas like China. A weak application will backfire.

My Strategy to Navigate H-1B Filing This Year

In sum, my strategy is early and thorough preparation, with paper back-ups to ensure the government’s foray into electronic filing does not derail my clients’ petitions.

Specifically I plan to:

  • File LCAs early (now!) to ensure they are in place prior to H-1B petition submission;
  • File registrations in the early part of March 1-20 window;
  • Prepare H-1B petitions in full to be ready to submit if selected;
  • Submit petitions selected in the early part of the 90-day window beginning April 1;
  • Have paper copies of H-1B petitions in case the system crashes.

I am not a doom and gloom kind of person, but I do believe in being realistic and prepared. Paper records ensured the Iowa Democratic Caucus would still be able to tally their votes even if it took a long time. And paper could save the day for H-1Bs this year.

If you are planning to file an H-1B petition this year, please contact me as soon as possible so we can get prepare to register your company in early March.