As detailed in yesterday’s post, this week DHS announced a plan to institute a pre-registration process for the annual H1B lottery. This means that instead of preparing a complete application prior to entering the lottery as required under the current process, employers would fill out a fairly basic online form and be electronically notified if they’ve been selected in the lottery. If selected, they would then prepare and submit a complete application within 60 days.
This is excellent news for employers and would greatly increase the efficiency of the process! However, we don’t know if it will actually be implemented by April 2019. This leaves expectant applicants with two competing risks to weigh:
- If you proceed with preparing a complete application early and the online registration process is implemented for 2019 and you are not selected, you will face the frustration of having lost the time and money spent preparing a complete application that cannot be used.
- If, on the other hand, you wait too late for final news about the process for 2019, you risk not leaving enough time to complete a thorough application, or to find a good attorney available at the last minute during the busiest time of the year. Given USCIS’s new policy of encouraging officers to deny insufficient applications straightaway instead of issuing a request for additional evidence (“RFE”), filing a “bare-bones” application just to get through the lottery is no longer a viable option. This year it will be imperative to submit a very thorough application the first time, as you may not be given an opportunity to refine arguments or submit additional evidence after the initial filing.
It appears that DHS is trying to fast-track the process to have it in place for 2019, but many of us remain extremely skeptical that they will be able to complete such a big project in this tight timeframe. The proposed changes are open for public comment until January 2, 2019. Once the public comment period has closed, DHS will have to read all of the (many!) comments received and address all of them in publication of the final rule. They will also need to update the text of the final rule itself based on tweaks they decide to make based on public comments. They would then have to wait at least 30 days after the publication of the final rule before implementing the new system. Since the registration period must be open for at least 14 days before April 1 and they have committed to announcing the details of the new registration system at least 30 days before the registration period starts, this means they must have all of these details ironed out no later than February 16.
From a technical perspective, they also need to build and test the new system within a timeframe that seems lightening-fast for a government agency with an abysmal record when it comes to implementing new technology in a timely fashion. This change was initially proposed nearly eight years ago, but was never finalized, and the technology never developed. In its announcement this week, the agency explicitly acknowledged that it may not be able to finalize the new system within such a tight timeframe, stating “if the rule is finalized as proposed, but there is insufficient time to implement the registration system for the FY 2020 cap selection process, USCIS would likely suspend the registration requirement for the FY 2020 cap season.”
We will be monitoring developments on this topic with bated breath and keep you posted!
If you have general questions on this topic, please leave a comment on this post and I will try to respond. Please note that I cannot respond to questions regarding the specific facts of your case on this blog, but I would be happy to discuss specific case questions with you over the phone or Skype! You can schedule a consultation here.