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H-1B lottery change may drive increase in visa applicants

The U.S. is launching an H-1B electronic registration system in March. It should make the process of applying for a visa easier, users say. That is if it works.

The U.S. government's new electronic H-1B visa registration will make it easier for employers to submit a visa applicant. But there is concern it might encourage more visa petitions and make it harder for employers to win the H-1B lottery.

That's one of the issues raised by immigration attorneys who apply for visas on behalf of employers. They are also worried about the reliability of the electronic system once it goes live March 1.

The U.S. has put in rules to discourage employers from gaming the new system. Officials also insist that the technology is ready. But there's still plenty of doubt and questions among users.

Previously, employers mailed a paper application and a check covering fees that could total in the thousands. The U.S. issues 85,000 work H-1B visas each year, but last year received 190,000 applications. An H-1B lottery randomly selects the visa winners.

With the electronic system, employers pay $10 and fill out an online registration to be entered into the H-1B lottery, which is held in April. If a company's visa candidate wins, the employer then has 90 days to submit a full petition by mail with all the required fees.

Will the system work as advertised?

Immigration attorneys worry about the reliability of the electronic system. Could a flood of registrations on March 1 overwhelm it? The electronic system for H-2B visas for labor and agricultural workers crashed earlier this year.

Because entering the H-1B lottery is cheap and relatively easy, immigration attorneys also wonder if the electronic system will encourage more employers to enter candidates.

"I do think we will see an increase in the number of cases that are entered in the lottery," said Chad Blocker, immigration attorney and partner at Fragomen, Del Rey, Bernsen & Loewy LLP in Los Angeles. The $10 registration fee is "not enough to dissuade any employers from filing," he said.

"There's just no real downside to submitting a case," Blocker said. He wouldn't be surprised to see a 20% to 30% increase in petitions.

But Blocker does see merit in the electronic system. "What we've been doing in the past is terribly inefficient," he said.

HR managers may coordinate H-1B hiring by working with their in-house legal staff or outside counsel. The electronic registration process is expected to reduce business costs because firms won't have to pay to submit a completed visa application unless they win the H-1B lottery.

For its part, the U.S. government estimates it will save $1.6 million annually in H-1B processing costs as a result of moving to an electronic registration system. It is spending about $1.5 million to create the electronic system, although this is a one-time cost, not including annual maintenance charges.

USCIS rules to prevent abuse

The United States Citizenship and Immigration Services (USCIS) has established some rules it hopes will keep employers from flooding the registration system. They include prohibiting an employer from submitting more than one registration for the same beneficiary in the same fiscal year. The government also requires registrants to attest their intent that they plan to follow through with the visa petition, should they win the lottery.

Sharvari Dalal-Dheini, director of government affairs for the American Immigration Lawyers Association, said it's hard to predict how the electronic system will impact registration volumes.

There is, however, "general anxiety" among immigration attorneys about "how USCIS will operationalize this and whether it will be rolled out seamlessly," Dalal-Dheini said.

The U.S. will begin taking H-1B petitions March 1 for the 2021 fiscal year, which begins Oct. 1, 2020. The USCIS planned to launch the electronic registration for this fiscal year, but suspended it "to ensure that the system met requirements," USCIS spokesman Matthew Bourke said in an email. The government "conducted sufficient stress-testing and evaluation before determining the registration process was ready for implementation," he said.

Bourke said the pilot testing phase was successful, but added that "USCIS can suspend the registration requirement if it experiences technical challenges with the H-1B registration process and/or the new electronic system that would be used to submit H-1B registrations, or if the system otherwise is inoperable for any reason."

The electronic registration period will run from March 1 to March 20. The government will lengthen that period if needed or re-open the registration if there are problems, Bourke said.

Worry remains, despite assurances

USCIS assurances aside, there is worry among immigration attorneys about whether the system will work without glitches. They also have questions about how it will work. Will they be notified, for instance, once a registration is accepted and submitted to the H-1B lottery?

Among those with concerns is Amanda Franklin, an immigration attorney at Moore & Van Allen PLLC in Charlotte, N.C.

There's a lot of concern and a lot of questions about how this is going to work, and if it doesn't work, then what?
Amanda FranklinImmigration attorney, Moore & Van Allen PLLC

Franklin expects filers to try to register March 1, the day the system opens. "The government's ability to keep their technology up and running with high volume is notoriously bad," she said.

"There's a lot of concern and a lot of questions about how this is going to work, and if it doesn't work, then what?" Franklin said.

Franklin isn't sure the registration system itself will encourage more employers to file H-1B visa petitions. If employers want to hire someone, they're going to do what they need to do, whether it's a paper-based application or an electronic one, she said.

Punam Rogers, an immigration attorney and partner in the Boston office of Constangy, Brooks, Smith & Prophete LLP, said she hopes USCIS "has enough IT support and help desk support to assist attorneys and employers who are going to be filing."

Rogers, overall, likes the new process. It helps manage resources "so you don't have to file all your applications all at once, only those that are selected" for the lottery. 

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Will the H-1B electronic registration process encourage you to sponsor visa applicants?
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