2019: A year in review and H-1B Online Registration concerns.
2019: A year in review
2019 was another challenging year for Immigration folks. USCIS continued to issue RFEs and Denials at alarming rates and Beneficiaries who had been previously approved for H-1B status, found themselves unable to secure much needed extensions.
According to Forbes magazine, denial rates for H-1B petitions rose from 6% in FY 2015 to 33% through the second quarter of FY 2019 for new H-1B petitions for initial employment. The increase in denial rates is part of President Trump’s plan to reduce Legal Immigration and protect the jobs of U.S. workers. As a result, USCIS has changed the standards for adjudicating H-1B petitions and are considering factors which Congress did not intend for them to consider.
Last year, USCIS would typically deny a case if an end-client letter was missing. Thus, Attorneys impressed upon the client the need for a strong end-client letter. Seeing that Employers were providing these letters, USCIS changed tactics and started to place a lot more emphasis on needing to see copies of service agreements and Statements of Work/Work Orders. As is typical in the IT industry most Statements of Work/Work Orders are issued short-term in duration only, usually for 6-12 months at a time. Because Employers are not able to demonstrate specific work for the entire requested validity dates (usually 3 years), USCIS has been denying cases or approving them for much shorter validity periods. The requirement for an Employer to show specific work for the entire requested validity dates (known as the “specific work rule”) has made it increasingly difficult for IT Consulting companies to obtain H-1B approvals.
USCIS continues to deny H-1B petitions for a multitude of reasons including the lack of a valid employer/employee relationship, specialty occupation etc and officers have been nit-picking almost every document. However, by formulating more complex legal arguments and letting USCIS know what the law actually requires, Patel Law Group has still been able to maintain a high approval rate for H-1B petitions.
Furthermore, in order to overcome these denials Patel law Group has been advising clients on filing Federal lawsuits to challenge USCIS on their interpretation of the law and their imposition of new unlawful requirements. 2020 is likely to see a significant increase in the number of lawsuits being filed by our firm. At Patel Law Group we are committed to obtaining the right results for our clients.
The importance of this announcement is that Employers who wish to file an H-1B cap case must first electronically register and pay a $10.00 registration fee. What this means is that the Employer will no longer have to submit a complete H-1B petition in order to enter the lottery. I for one welcome this change and have always been puzzled as to why USCIS has insisted on the submission of a complete petition, especially when you bear in mind that there are only 85,000.00 visas available and there is usually close to 200,000 petitions filed every year. This means that 115,000 petitions were being sent to USCIS and returned every year. The only person who was benefiting from this was Fed Ex!
Historically, Employers were required to submit an H-1B cap during the first 5 business days of April, with most submitting applications on April 1st itself. However, in FY 2021, the online registration will run from March 1, 2020 until March 20, 2020. Only applicants with selected registrations will then be eligible to submit a full H-1B application to USCIS for adjudication. Employers will have 90 days in which to submit an application once notified that the case has been selected.
This online registration has the potential to make life easier for Employers and Attorneys, resulting in significant savings and document preparation. However as with any new change, there are concerns that the online registration will be abused.
The online registration will make it much easier for Employers to submit an H-1B cap petition and given the low fee to submit an application, there is a real concern that large IT Consulting firms will flood the lottery with hundreds/thousands of registrations.
USCIS claims that the registration will include an Employer attestation confirming that there is a bona-fide job offer and that it intends to file an H-1B petition. Therefore, companies that file registrations and do not follow through with filing a petition are likely to come under close scrutiny. I suspect USCIS will be looking to make examples of companies who file that do not have available projects, and therefore my advice is to only file an online registration if you have a legitimate project which is available as of October 1, 2020.
Furthermore, Employers are prohibited from submitting more than one registration per beneficiary.
USCIS have stated that they will post step-by-step instructions informing registrants how to complete the registration process on its website along with key dates and timelines as the initial registration period nears. We will provide further information as soon as it is available. Until then, enjoy the Holidays!
December 18, 2019