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H-1B Registration Could Reduce Costs for Employers

H-1B Registration Could Reduce Costs for Employers Background Decorative Image

Getting an H-1B visa for a new employee has never been easy. Any employer who has been through the process knows that putting together an application can be time-consuming and expensive, especially if they have never sought an H-1B for that particular position. Moreover, even after paying an attorney to prepare a petition, there is no guarantee that a visa will be available because the number of H-1B petitions has almost always exceeded the 85,000 cap (take last year as an example; approximately 190,000 petitions were filed). So even if you’re naturally lucky or a lottery winner, you should be aware that there is an increasing chance that you will receive a request for additional evidence or that your petition will be denied.

In the past, employers have been required to submit their full applications for H-1B visas on April 1st — or within a few days after that date — if they wanted to have any chance at winning the H-1B lottery that would allow their potential employee to begin work on October 1st. While the USCIS has refunded the application costs for petitions that are not selected in the lottery, those employers still have incurred substantial costs in both attorney’s fees and company time by putting together the unselected petitions.

Starting in 2020, however, instead of filing a complete application on April 1st — which could be rejected in the lottery process — employers will first be required to file a simple online registration identifying the employer, the H-1B beneficiary whom they would like to sponsor, the name of the attorney, and a statement as to whether the application will be for the regular cap, which includes 65,000 visas, or the master’s cap, which includes an additional 25,000 visas. A nominal $10 registration fee will be charged. The USCIS will then select enough potential candidates to fill the required quota. According to the USCIS’s December 6, 2019 news release, employers will then be given at least 90 days to submit the applications for the registrations that were selected in the lottery. This new registration process should create cost savings by allowing employers to wait and see if they have been selected by the lottery before they have to put together a full application.

Despite these cost savings, employers should still start talking to their immigration specialists about the viability of sponsoring specific candidates several weeks (or preferably longer) before the registration portal is opened, especially if this is the first time that the employer has sought an H-1B visa for a particular position. An immigration lawyer will still need to have a thorough understanding of the employer’s business, the nature of the job that the employer is seeking to fill and any educational requirements for filling it in order to provide the employer with the best advice. Additionally, a candidate’s educational and work experience, as well as their background, will also need to be fully vetted before the submission of their name in the registration process. Employers are not allowed to substitute beneficiaries for selected H-1B registrations. This may sound like a lot, but the good news is that if the particular application is not selected for the lottery, the employer will still have spent substantially less time and money on an unsuccessful application.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.