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Cautiously Welcoming H-1B Processing Transformation

  • Published: January 11, 2019
H-1B Visa

H-1B processing has been a significant part of my life. Fresh from the military and my bachelor’s degree I accepted a position with a multi-national company.  My first role (before law school) was as Immigration Coordinator.  I coordinated with the company immigration lawyer to facilitate H-1B processing for new technology initiatives.  Back in 2000 the H-1B petition was a small packet.  H-1B processing was quick and relatively painless when the <25-50-page packet was submitted.  After graduating from law school, I represented H-1B employers and established a high-volume immigration practice.  Many of these years included the H-1B Cap lottery while some were glory years where H-1Bs were available for most of the year and filing cycles were, therefore, spread across 250-350 days.  There were the not so easy years in which the H-1B Cap felt more like a survival race where our high-volume processing resulted in many long work hours and late evening races to the airport to drop off overnight courier packages.

In the subsequent 19 years (OMG! 19 years!), I’ve moved from paraprofessional to attorney and have seen the H-1B process grow increasingly cumbersome.  For my Information Technology and Engineering clients, the H-1B packet itself has grown from 25-30 pages to a whopping 150-200 pages (plus the duplicate for the Kentucky Consular Center).  Still, as a practitioner, I can understand the U.S. Citizenship and Immigration Service’s (USCIS) need to ensure proper evidence is submitted in support of the H-1B petition.  The evidence ensures that the beneficiary qualifies and that there is a valid specialty occupation available for the beneficiary.

The largess of the H-1B petition packet during H-1B Cap season meant that law firms must print and ship for filing literally thousands of pages of H-1B Cap cases.  As an example, in 2016 (FY 2017 H-1B Cap) our firm processed 650 H-1B cases at an average page size of ~150 pages printed in duplicate which works out to about 97,500 pages printed and shipped to USCIS. Forty boxes of H-1B cases were shipped to the California and Vermont Service Centers.  In 2017, the H-1B lottery yielded 236,000 cases filed resulting in roughly a 30% acceptance rate.  The 70% of H-1Bs that were rejected under the FY 2017 H-1B Cap were all shipped back at USCIS cost of $12-$18 per packet to the law firm along with the rejection notice.  Our firm then shredded the 68,000 pages of total waste and refunded filing fees to the clients.

I’ve tried many times to estimate the waste and expense related to the H-1B Cap process.  I can only guesstimate:

Rejected Case Expense Estimates:

$1.8 million-USCIS Shipping cost to return packets;

$275,000 Paper

$2.9 million Shipping to USCIS

$83 million Legal Fees ($500 reduced high-volume H-1B legal fees * approximately 166,000 rejected cases. Legal fees would vary greatly so the actual number is quite a bit higher.)

$40-$50 million 664,000 hours of labor (based on 4 hours of admin, bookkeeping & attorney labor per case)

My point in providing these very rough estimates (I mean it, they are very rough estimates.) of the approximate $140 million spent on rejected H-1B Cap cases for FY2017 is to cautiously applaud the current USCIS efforts to transform the H-1B Cap selection process.

I am immediately suspicious of the current administration making any changes to the immigration process. We have witnesses the administration’s attempt to road block legal immigration since the inauguration. However, the USCIS efforts to make the H-1B Cap processing more efficient is an effort that has been underway for several years. USCIS briefed American Immigration Lawyers Association (AILA) members on its transformation plans in 2011 which somewhat allays my concern that the effort to make the H-1B program more efficient is some diabolical scheme by the Trump administration to undermine the program. See USCIS Transformation 2011

Repackaged from “USCIS Transformation” to the “DHS Merit-Based Rule for More Effective and Efficient H-1B Visa Program”, the program would require employers to first register in an electronic system.  The previous cumbersome process of submitting large wasted petitions to USCIS will be replaced with an electronic submission.  Only after the lottery is conducted and an employee is selected under the H-1B Cap lottery will the law firm and employer be required to submit the petition and supporting documents to USCIS. This new process proves to eliminate excessive waste.  USCIS initiative to implement transformative technology to more efficiently process H-1B Cap petitions should be viewed as a positive move forward.

USCIS announced the transformation on November 30, 2018 with public comment due to the Federal Register on or before January 2, 2019.  The announcement included an initial plan to roll out the changes for FY2019 H-1B Cap processing with filings beginning April 1, 2019.  The miscalculation USCIS is making is presuming that a complex program can be rolled out without a pilot program test and within just 90 days of the closing of public comment period. Thus, while we can welcome transformation and the more efficient processing of H-1B Cap cases, USCIS must take care to ensure the program does not fail due to lack of proper testing and implementation.  USCIS must also ensure that a hasty roll-out does not cause added expense and litigation by impacting the H-1B Cap filings.

Our firm is prepared for processing under the long-standing manual system while we watch and wait for the USCIS announcement electronic processing.  We will certainly have the backup petitions ready and waiting for the mailing to USCIS should the electronic system fail.

This blog entry is provided as a service of Stephanie Scarborough and the amazing team at Scarborough Law. We don’t just draft H-1B petitions, we partner with your company to ensure your success in your immigration processing and compliance.  With our help, the H-1B Cap season does not have to be a stressful time for your company.  Our experienced attorneys and paraprofessionals are standing by to partner with you.  You can begin by contacting our office today to schedule a meeting with, Phone (844) 329-6469.

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