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What’s New for This H-1B Cap Season

FLAG system home pageThe week following Thanksgiving often signals the beginning of the holiday shopping season for those who did not dive in while still digesting their turkey dinner. As an immigration attorney, this week always turns my thoughts to preparation for the coming H-1B season.

Not unlike holiday gift-giving for many, this year’s changes to the H-1B cap season have an electronic theme.

FLAG System Replaces iCert

The Department of Labor (DOL)’s Office of Foreign Labor Certification (OFLC) has moved to update its technology by developing the new Foreign Labor Application Gateway (FLAG) electronic filing system to replace the decades-old iCert one. Last spring OFLC began migrating program applications to FLAG, beginning with the Prevailing Wage and H-2B visa program.

As of October 1, OFLC began requiring all Labor Condition Applications (LCAs) to be filled via the FLAG system. If you have ever moved to a new technology system, you know that the move isn’t always smooth. It took hours for us to figure out the new system. We discovered that in OFLC’s enthusiasm to roll it out some bugs remained to be resolved, but we have succeeded in filing applications.

We don’t know how long it will take for OFLC to address some of the challenges of the system, but we do know that LCAs are taking a little longer than usual to process. The deluge of LCA applications during H-1B cap season means we should build in extra time for processing them too.

Ultimately this system will be used for filing PERM Labor Certifications as well, but the electronic filing requirement for them has been suspended this year to allow more time to test the system in that capacity.

New $10 Fee and Electronic Registration for Employers

Beginning this year (Fiscal Year 2021), employers filing petitions for cap-subject H- cases will need to register electronically first with United States Citizenship and Immigration Services (USCIS) and pay a $10 fee. This new rule goes into effect on December 9, 2019 and is intended to facilitate the filing process and to fund the new electronic registration system. USCIS is a fee-funded organization.

Only employers registered with USCIS will be permitted to file cap-subject petitions into the H-1B lottery in April.

H-4 EAD Is Still Possible

H-4 visa holders are immediate family member dependents of an H-1B visa holder. On May 26, 2015 the Department of Homeland Security (DHS) began approving H-4 dependent spouses who applied for employment authorization. This is commonly called the H-4 EAD rule.

Since the change of administration DHS has seemingly had a change of heart and has listed removal of the H-4 EAD rule on its agenda since Spring 2018. DHS’s Fall 2019 Agenda lists the timing of the rule removal as March 2020. This does not mean it will definitely happen then. The Office of Management and Budget (OMB) is still reviewing DHS’ case for rule removal and has yet to approve it.

H-4 spouse dependents can still apply for new employment authorization and renewals.

We hope to make your H-1B season experience easier and less stressful despite the new electronic system and fee requirements.

As for your holiday shopping though, all we can do is wish you luck and happy holidays!