by Farhad Sethna, Attorney

 

Remember I wrote just a short while ago that USCIS was going to “streamline” the H-1b process by permitting H-1b applications to be “pre-selected” for processing, thereby alleviating the need for employers to spend thousands of dollars in legal fees to prepare and file complete H-1b petitions only to have them not selected in the USCIS processing lottery?

The USCIS announced that it would implement the process effective January 1, 2020.  Fair enough, since H-1b applications can only be filed on or after April 1.  That would give selected petitioners enough time to compile and file complete H-1b petitions by April 1.  Fair enough,  good idea.

HOWEVER – leave it to the USCIS to mess up a good idea:  the USCIS just announced that the pre-selection registration would take place March 1 – March 20, 2020.  Thereafter, the random selection lottery would be implemented on the applications received, and the winners would submit completed petitions, on or after April 1!

Fantastic:  so that gives selected petitioners a maximum (if the USCIS is 100% efficient and makes its selection by sometime on March 21 (the day after registration closes) and notifies applicant-petitioners whether or not they have been selected on March 21, a grand total of 10 (yes, count them, TEN) whole days to prepare and file a voluminous H-1b petition.  I say this even though the selection should be capped at 85,000, I am certain the USCIS will HAVE to select more, because they have to allow for (1) petitioners who do not apply;  and (2) those petitioners whose H-1b applications are ultimately denied.

There are those who would argue that with approved pre-selection, an employer’s H-1b APPLICATION slot is assured, so there is no pressure to file the H-1b by the first week of April.

To those defenders of the USCIS policy, I would respond that with the USCIS taking well OVER 6 months to process H-1b applications, a filing past April 1 would delay ultimate approval of the H-1b PAST October 1, thereby preventing students whose post-completion OPT has expired from working past October 1.  Therefore, an employer with a OPT-work authorized employer still has to file as close to April 1 as possible in order to reduce or eliminate the cap-gap unemployment their employee would have to endure past October 1.

(I realize most of the above is extremely technical and presupposes an in-depth knowledge of USCIS H-1b processing – however, much of the background leading to my conclusions is available elsewhere on this blog) 

So, once again, as with ever other misguided business immigration poilcy in recent years, USCIS has once again failed miserably to account for the realistic needs of business. 

What is the result of this USCIS-created unnecessary mess?

Cap-subject employers in the above scenario will have to file their H-1b applications in the first week of April, if selected.  Therefore the employer should have a skeletal H-1b application ready for completion should the March-registration process bear positive fruit.

What am I advising my employer clients to do?

Keep the H-1b ready to file at short notice (if selected), by:

Get an LCA approved and ready to file with the USCIS, as this is the main bottleneck;

Have a supporting H-1b cover letter drafted, reviewed and approved;

Collect relevant employer and employee supporting documents and information.

Pre-prepare the H-1b application forms, or at the very least, a G-28

Conclusion:

Another “industry friendly” policy by USCIS bombs….no surprise, since the policy makers at USCIS HQ have no knowledge or appreciation of how the real world works.  We are never going to make “America Great Again” at this rate;  instead, this administration’s ill-considered business immigration policies are going to “Make America Weaker Still”

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Copyright, Farhad Sethna, Attorney, 2019

About the author:

Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.

This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.