Stephen B. Maule

Stephen B. Maule Partner

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USCIS Implements Significant Changes To The Upcoming H-1B Filing Process

As part of it effort to “modernize and more efficiently process applications to live or work in the United States,” U.S. Citizenship and Immigration Services (“USCIS”) has altered the filing process for H-1B visas. In addition to implementing a $10 electronic registration fee, USCIS will now require employers, and their legal representatives, to register their intent to submit a Petition for an H-1B visa. This new filing process replaces the long-existing practice of preparing and filing extensive petitions and accompanying supporting evidence with no guarantee whether the employer has been selected in the annual lottery for H-1B visas.

The H-1B nonimmigrant visa is reserved for professionals in a specialty occupation, defined as those positions which require theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor. Professions that qualify as a specialty occupation generally include architecture, engineering, mathematics, physical and social sciences, education, law, business specialties, and others that require a bachelor’s degree or the equivalent. If approved, H-1B visas are valid for three years, with the possibility of an extension for an additional three years.

Those familiar with the H-1B process know that employers have had difficulty obtaining H-1B visas as the annual allotment of 65,000 H-1B visas, plus the additional 20,000 visas designated to individuals with advanced degrees, have been exhausted within days of them becoming available on April 1. In 2019, for example, USCIS announced on April 5, just 4 days after the filing period began, it no longer would accept petitions for new H-1B employment because the annual allotment had been reached. In fact, USCIS received 201,011 petitions for H-1B visas in 2019, well more than double the allotted amount. Once again, USCIS was forced to use a lottery to determine which petitions would be selected.

New for Fiscal Year 2021, which begins October 1, 2020, employers will be required to electronically register on the USCIS website for each individual they wish to sponsor for an H-1B visa. The fee for each registration is $10. The registration period will begin at 12:00 p.m., March 1, 2020, and end at 12:00 p.m., March 20, 2020. No registrations will be permitted after 12:00 p.m., March 20, 2020. Only very basic information about the employer and the individual will be needed to register.

Upon conclusion of the registration period, USCIS will determine whether a lottery will be needed based on the number of registrations received. Given recent history, the chances of a lottery are very high. After eliminating any duplicate filings for the same beneficiary, USCIS will conduct the lottery and notify selected employers by April 1, 2020. Employers selected will have 90 days to file their I-129 Petitions, filing fees and supporting evidence. The actual filing of the petition, and the type of evidence needed in support, will follow the same procedures as in prior years. Further, the recent trend of higher USCIS scrutiny of selected petitions, resulting in more Requests for Evidence during the decision-making process is expected to continue.

Employers who anticipate the need to utilize the H-1B visa process for employment commencing October 1, 2020, should start planning now for the upcoming filing period. The St. Louis employment and immigration attorneys at McMahon Berger have been assisting employers with their immigration needs for many years and are well-equipped to assist with preparing and submitting petitions for H-1B and other employment visas, including L-1 intracompany transfers and permanent residency. In addition, we routinely advise clients on employment verification issues, such as Form I-9 and E-Verify compliance.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

 

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