Employers in the tech sector and other specialty occupations have long relied on the H-1B program as a valuable tool for securing otherwise scarce professional resources.
But with an uncertain H-1B landscape in place, largely as a result of the 2017 ‘Buy American, Hire American’ Executive Order (BAHA), employers and foreign national employees are justifiably concerned. In this second installment of our three part series, we delve in the H-1B’s most recent and upcoming procedural changes and what they mean for the employers who rely on these highly skilled workers.
This month, we are fortunate to receive input and direction from Michael W. Lin, principal attorney for the prominent immigration law firm of BRAVLIN, PC, located in Arlington, Virginia. Working in the field of immigration law since 1992, Mr. Lin has handled countless highly complex immigration matters, ranging from corporate mergers, successor in interest, crimmigration, H-1B and E-2 petitions, and all aspects of immigration law. In the following article, Mr. Lin applies his expertise and offers valuable guidance for the Fiscal Year (FY) 2021 filing season, with the goal of helping employers to successfully navigate the complex new H-1B environment.
The H-1B “cap” filings underwent a big change in FY 2020.
The lottery process for FY 2020 was conducted using new rule changes issued by the Trump Administration. These changes, which are expected to continue for FY 2021, give preferential treatment to H-1B visa petitions filed by employers for individuals with advanced degrees (Master’s or above) from a U.S.-based college or university. Under this new protocol, the USCIS would first select 20,000 of the H-1B petitions filed for individuals with a US earned advanced degrees, which is known as the “Master’s Cap”. Thereafter, all cases that were not selected under the “Master’s Cap” quota and all other cases (“Regular Cap” cases – meaning those cases that are not U.S.-earned Master’s degree cases) would undergo the random selection process of selecting the remaining 65,000 H-1B visas. The USCIS predicts that this new process will result in a 16% increase in the proportion of H-1B recipients who hold at least the eligible U.S. master’s degree.
“This new merit-based reversal structure is something that should be taken into consideration by employers when contemplating H-1B filings,” says Mr. Lin. “It could be particularly detrimental to H-1B employers who don’t typically require higher level degrees. This includes those in architecture, accounting and public education, among others. They will now have a smaller pool of Regular Cap petitions to draw from in the new lottery process.” He cautions that another group may also be affected by these unintended consequences: U.S.-trained physicians, who represent 25% of the doctors in training in America. Many go through the H-1B regular lottery because of their residency and fellowship training. Again, the new cap protocol is likely to impact their likelihood of selection in the Regular Cap lottery.
A new pre-registration process could be a positive for FY 2021 filings.
Another major change to the H1B program, the deployment of lottery pre-registration process, was postponed for this year but is slated for implementation in FY 2021. This electronic pre-registration system will allow the annual lottery to be run based on the pre-registrations rather than requiring employers to file entire H-1B applications. The rule has obvious appeal because it would save employers considerable time and money. While the pre-registration process ruling is complex and comprised of many facets, Mr. Lin explains its most critical elements:
- The rule imposes a new requirement for H-1B petitioners to initially electronically register with USCIS during a designated registration period that will take place prior to April 1st each year and would not have a fee attached to it.
- To pre-register, only basic information regarding the petitioner and the beneficiary will be required, including, but not limited to: 1) the employer’s name, employer ID number and mailing address; 2) the employer’s authorized representative’s name, job title and contact information; 3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number; 4) if the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education; 5) the employer’s attorney or accredited representative, if applicable (and possibly submitting an electronic G-28); and 6) any additional basic information requested by the registration system or USCIS. Petitioners would not be required to submit a Labor Condition Application until after they have been selected under the pre-registration system. The registration period will be at least 14 days before the first day of filing (i.e. at least 14 days before April 1st).
- USCIS will then conduct the annual H-1B lottery from the pool of timely-filed pre-registrants instead of requiring would-be petitioners to submit complete petitions.
- Petitioners selected in the pre-registration lottery will receive a notice of eligibility to file an H-1B petition with information regarding where to file and the time period. Petitioners will have at least 60 days to properly file an H-1B petition for the named beneficiary. No substitution of beneficiaries will be permitted.
- To address potential issues of “flooding the system” with non-meritorious registrations, DHS is prohibiting petitioners from submitting more than one registration for the same beneficiary during the same fiscal year, and is requiring petitioners to make an attestation in the system indicating their intent to file an H-1B petition for the beneficiary in the position for which the registration is filed. DHS may refer frivolous registrations to appropriate federal law enforcement agencies for investigation and prosecution.
You can survive and thrive in the new H-1B era.
If you’re among the thousands of employers who rely on highly skilled H-1B workers, or are planning to file a petition next year, Mr. Lin offers the following advice:
- Be prepared. “Be ready to demonstrate your need for each recruited employee, and to explain and defend the minimum education requirement, as both are required qualifiers,” explains Mr. Lin. Employers need to have an intimate understanding of what the potential H-1B employee will be doing and what is actually required for the position in terms of education and experience. Employers must also consider how they will document this work and support the need for a specific level of education and experience, particularly in light of the stricter evidence thresholds that are currently in place.
- Ensure a level playing field. H-1B candidates typically have interest from multiple companies. Therefore, explains Mr. Lin, employers should focus on offering H-1B candidates the same attractive compensation, incentives and benefits that they do for their American employees who hold the same position. This strategy stands to benefit employers in two ways: it will assist in securing the interest of outstanding foreign nationals and in providing USCIS with employment evidence and substantiation of wage levels.
- New to the H-1B? You’ve got some work to do:
- Get up to speed. If you’re new to the H-1B process and sponsorship, it’s up to you to learn all you can about its dynamics and many intricacies. Seeking the guidance of qualified legal counsel is a smart way to go, says Mr. Lin. “We offer an entire H-1B newcomer packet on our site (https://bravlin.com/resources/) so that employers who are new to the process can read up on the details in advance. It’s a valuable free resource and it’s available to everyone.”
- Don’t procrastinate. “Get started now on registering your company’s tax ID with the Department of Labor’s ICERT system. If your company has never filed for an H-1B visa petition in the past, the chances are that the DOL’s ICERT system may not recognize your company’s tax ID number. You will have to submit an IRS issued document that contains your company’s FEIN (e.g. SS4 letter) to the DOL to register your company to use the ICERT system. Once your company’s tax ID number is registered, your company is then ready to file a labor condition application (ETA9035E), which is the first step is preparing for an H-1B petition to be filed,” advises Mr. Lin. Prospective new H1-B employers can first sign up for an account with the DOL ICERT System at https://icert.doleta.gov/. Employers can try to complete an ETA9035 application to see if the system recognizes the FEIN. If the system does not recognize the FEIN, the employer must submit an IRS issued document that contains the employer’s FEIN to the LCA Help Desk at firstname.lastname@example.org. Or, you may contact Mr. Lin’s office for assistance.
“Employers shouldn’t be deterred by the recent H-1B changes and the increase in denials from USCIS,” says Mr. Lin. “By being forward-thinking and well-prepared when utilizing the H-1B immigration category, it remains a practical and valuable tool for securing highly skilled workers in our underserved labor market.”
Is your organization prepared for success under the newest H-1B visa guidelines?
The HR Team is here to offer our guidance and helpful tools to facilitate your petition processes with your outside counsel. Please contact our knowledgeable professionals to learn more.
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