Challenges for Employers in FY 2021 H-1B Cap Season

[tacobell fan]

08/20/2019: Challenges for Employers in FY 2021 H-1B Cap Season

• Employers will face four challenges to file H-1B cap cases for the FY 2021 cap season:
  • (1) One is payment of filing fee for filing of "Registration." Regardless of their success in lottery selection in the registration for H-1B cap filing, the employers may have to pay a special fee for the registration. The amount of fee has yet to be published in the federal register, but employers should be aware of requiement of special fee for the "registration" itself, apart from the H-1B petition filing fees.
  • (2) DOL will soon convert the Labor Condition Application system from the current iCERT online filing system to FLAG online filing system. They have already abandoned iCERT online filing system and converted to the FLAG online filing systems for the prevailing wage determination request form and other H temporary nonimmigant visa programs. The new FLAG system initially presented a lot of technical problems and still remains a challenging issue for the temporary labor certification applications and prevailing wage determination proceedings. The FLAG system is technically very complicated, demanding the filing employers to overcome technical challenges until they learn the details and potential issues for filing under the new system.
  • (3) The "Registration" for H-1B cap will be required to be filed online using a new "online filing system" which has yet to be disclosed by the USCIS. Should the registration online filing system adopt a system which is as complicated as LCA FLAG filing system, the employers will "literally" face a tremendous challenge until they are trained in details. The problem is that the details of changes to the new H-1B cap filing system has yet to go through additional proceeding to complete the rule-making process and unless the USCIS expedites the rule-making process, its new H-1B cap filing system will indeed present a nightmare for the employers.
• The new filing system which was disclosed in the proposed rule will add additional problem, including employer's filing of LCA. The proposed rule indicates that depending on the situations, some of the H-1B cap petitions may have to be filed at different times among the winners in the registration lottery. Upto now, employers have been filing LCAs for the cap cases before April 1 since the H-1B cap petition has to be filed with the certified LCA during the first week of April of the cap season year. However, owing to the changes with filing system with the two steps between "registration" filing and cap selection step and "H-1B cap petition" filing step after the registration lottery selection, there will be several different times for H-1B cap petitions depending on when their registration lotteries were selected. The proposed rule indicates that the "registation" lottery winners will be required to file H-1B cap petition within 60 days from the date of the registration selection. Since successful employers may have to file the petitions with the USCIS within 60-day of registration selection notice, employers who file the LCAs after registration selection notice may face a challenge of getting LCA certified within 60 days, expecially considering the technical challenges with the LCA filing system itself.
• For the foregoing reasons, immigration stakeholders, including AILA, have been pushing the USCIS to delay "online" filing of "registration" for H-1B cap filing. Otherwise, the USCIS should release the details of their technology for "registration" filing system as soon as possible. What a headache!! Let's see whether the USCIS will change their mind.