As many of you know, the USCIS has implemented a new H-1B electronic registration system for H-1B cap cases. The goal is to streamline the system for attorneys, employers, and H-1B hopefuls. This lottery season, gone will be the months of waiting for the final outcome of the lottery. The USCIS will tell us who ‘won’ the lottery by March 31st, which will help many F-1 students on OPT or cap-gap who need a decision by September 30th.
Given that it’s now an electronic registration system, many employers are under the false impression that they do not have to provide as much information, nor as many documents, to be able to prepare and file the registration. This is not the case.
What the Regulations Say
Although the H-1B electronic registration system requests only basic information about the employer and employee, based onthe preamble to the H-1B registration final rule, DHS notes:
[…] registrants that have been found to engage in a pattern and practice of submitting registrations for which they do not file a petition following selection could be subject to monetary fines or criminal penalties pursuant to 18 U.S.C. 1001(a)(3) for making false statements and misrepresentations to the government.
This means that if a company files an electronic registration for an employee, the employee’s registration is chosen in the lottery, and the company chooses to not move forward with the filing of the H-1B petition, the company leaves themselves open additional fraud-based scrutiny by USCIS.
If, however, the company chooses to not file an H-1B petition for a legitimate reason: i.e. the employee left the company etc., the company should be able to adequately address any USCIS questioning related to this issue.
If the company chooses not to file an H-1B petition for what is considered a “frivolous” reason, which could include, but is not limited to: the following: they cannot or will not pay the minimum prevailing wage, the beneficiary doesn’t have a degree related to the position or they have not maintained valid nonimmigrant status while in the U.S., or the position does not qualify as a specialty occupation as defined by H-1B regulations, this may cause problems with USCIS and trigger additional scrutiny.
The Difference Is in the Documentation
The introduction of the new H-1B electronic registration system does not mean that all of the hard work reviewing and preparing an H-1B for submission disappears. In fact, the need to review all of the documentation prior to the filing of the electronic registration remains the same because the requirement to file a bona-fide H-1B petition with all of the information and necessary documentation remains the same.
If employers do not provide all of the necessary documentation that would be included in a typical H-1B filing until after the H-1B electronic registration is filed, they leave themselves open to potential USCIS scrutiny. Though the H-1B electronic registration system will make the H-1B lottery process much quicker, the requirement for a bona-fide job offer and a legitimate H-1B filing remains the same.
Both employers and employees should provide the necessary documentation prior to the filing of the electronic registration to give their H-1B petition the best chance for success. Even though this new electronic systems seems to be a better approach to the H-1B lottery than in prior years, just remember that nothing is too good to be true!