H-1B employers voice concern about lack of clarity in new visa registration process

H-1B employers demand stakeholder participation in the process. With OMB completing its review last week, the new electronic registration for H-1B visas is likely to be introduced next April

After the Office of Management and Budget (OMB) gave the green signal to the Department of Homeland Security (DHS) to implement a new rule that will allow the agency to add electronic registration fees for H-1B applications, a coalition of 15 business and trade groups have voiced concerns about the lack of clarity in the registration process.

In a letter addressed to Acting Director of the U.S. Citizenship and Immigration Services Kenneth Cuccinelli, the organizations made two requests with regard to the new process: about the lack of clarity on the exact timelines for the implementation of the new rule and lack of H-1B employers’ participation in the rule-making process so far.

The group, which represents some of the largest H-1B employers, urged the USCIS to confirm by September 15 whether the agency “intends to mandate use of the electronic registration system” for the next H-1B filing season, which begins on April 1, 2020.

RELATED: Trump administration proposes changes to streamline H-1B process (December 1, 2018)

Secondly, they requested the “USCIS to solicit additional participation and feedback from a wide range of interested stakeholders before the electronic registration system is operationalized.”

The signatories of the letter, dated August 16, included the US Chamber of Commerce, the American Immigration Lawyers Association (AILA), the tech industry immigration advocacy group Fwd.US, and a number of educational and industry trade groups.

The OMB completed its review of the proposed electronic registration process on August 12, 2019.

An OMB review is a standard first step in the rule-making process.

With the agency now giving the go-ahead, the electronic pre-registration requirement could be coming as soon as April 2020.

Another major change will the introduction of electronic registration fees for H-1B applications. How much the electronic registration fee is going to be is yet to be announced.

With the introduction of the electronic registration fees, the USCIS intends to make the process more efficient.

The electronic registration process was announced last December.

The new rule, when implemented, would require the sponsoring employers who would be filing H-1B cap application to first electronically pre-register with USCIS. More importantly, only the selected registrations will be eligible to file an H-1B application.

While the attorneys still debate if the pre-registration process would eventually mean that many prospective applicants lose out on the chance but for now it remains to be seen if and how the new rule is implemented for next H-1B season.

The clarity is important for the prospective employers because the preparations for the filing begin much earlier than the actual filing time in April.

That’s why the trade groups have written to the USCIS, as soon as the OMB completed the review. The letter, while welcoming “the agency’s efforts to modernize filing processes and improve efficiencies to better manage the H-1B lottery,” cautioned that “transitioning to a new electronic system has the potential for technical glitches and operational disruptions.”

It urged the USCIS “to engage in extensive beta testing of the system, with maximum participation and feedback from a wide range of interested stakeholders, before the system is required for use to ensure a smooth transition to the new
electronic registration system and minimize the risk of disruptions.”

The letter also urged meaningful “consideration of stakeholder recommendations and engagement in system testing is necessary to ensure that the registration system works as intended.”

The signatories wrote that “US employers, immigration practitioners, higher education institutions, and the general employment-based immigration community should have the opportunity to participate in the testing and vetting process as they will be the front-end users of the system and are best positioned to identify technical issues that might not be evident on the back end during the development of the electronic registration system.”

They added: “Furthermore, to ensure thorough knowledge of the new system, U.S. employers, immigration practitioners, higher education institutions, and the general employment-based immigration community should be given the opportunity to view the
electronic registration portal, and familiarize themselves with it, well in advance of any mandatory registration period. Extensive beta testing and demonstrations with end users contributed to the successful rollout of electronic filings, such as the Labor Condition Application (LCA) and ETA Form 9089 Application for Permanent Employment Certification.”

Besides the U.S. Chamber of Commerce, FWD.us and the American Immigration Lawyers Association, other organizations that signed the letter are the American Council on Education (ACE), the Association of American Universities (AAU), the Association of Public & Land-Grant Universities (APLU), BSA The Software Alliance, the College and University Professional Association for Human Resources (CUPA-HR), the Compete America Coalition, CompTIA, the HR Policy Association, the Information Technology Industry Council (ITI), the Presidents’ Alliance on Higher Education and Immigration, the Semiconductor Industry Association (SIA) and TechNet.

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