On Friday, November 8th, 2019, the Department of State (DHS) released a statement that there would be an adjustment to the immigration processing fees to meet their operational needs. This notice of proposed rulemaking has been published in the Federal Register. According to the agency, fees collected and deposited into the Immigration Examination Fee Account are used to fund nearly 96% of the budget for the United States Citizenship and Immigration Services (USCIS).
The DHS deemed this necessary because the USCIS is a self-funded agency that needs periodic reviews and fee adjustments to ensure the “recovery of the full cost of administering the nation’s immigration laws.” Though it has not been announced when these changes will become effective, there is a strong indication that it may commence in the next fiscal year, which begins in October 2020.
How Much Is the Increase?
Some of the classifications are going to be adjusted to a 5% increase above the current fees. However, due to the peculiarities of some visa classifications, the DHS will not limit their increase to 5%. Those in this category will be significantly higher than the current fees. The next headline gives a breakdown of the visa classifications and the increases attached to them.
Immigration Classifications to Be Affected
The following immigration benefit request fees are limited to a 5% increase above the current fees:
- Notice of Appeal or Motion, I-290B
- Petition for Amerasian, Widow/Widower or Special Immigrant, I-360
- Petition to Classify Orphan as an Immediate Relative, I-600
- Application for Advance Processing of an Orphan Petition, I-600A
- Supplement 3, Request for Action on Approved I-600A/I-600
- Petition to Classify Convention Adoptee as an Immediate Relative, I-800
- Application for Determination of Suitability to Adopt a Child, I-800
The following will not be limited to a 5% increase above the current fees:
- Provisional Unlawful Presence Waiver, I-601A
- Application for Employment Authorization, I-765
- Petition for Qualifying Family Member of a U-1 Nonimmigrant, I-929
- Application to File Declaration of Intention, N-300
- Request for a Hearing on a Decision in Naturalization Proceedings, N-336
- Application for Naturalization, N-400
- Application to Preserve Residence for Naturalization Purposes, N-470
Implementation of $10 Registration Fee for H-1B Visa
In a related development, there are going to be some changes made to the current adjudication of the H-1B visa classification. These changes include the new pre-registration process, which will incur a fee of $10 per registration.
Following a series of updates that began in January 2019, the Department of Homeland Security (DHS) is now set to implement the proposed $10 non-refundable fee for each H-1B registration submitted by employers seeking to hire H-1B workers.
The H-1B Pre-Registration System
In January this year, the DHS published a final rule requiring employers seeking to file an H-1B cap-subject petition, including those using the advanced degree exemption, to first complete an electronic registration with the USCIS. This registration, according to the proposed rule, must be completed during a designated period before the lottery window opens.
This was followed by a notice of proposed rulemaking on September 4th seeking public comments on its proposal to require a $10 fee for each H-1B registration. As expected, there were comments for and against the fee requirement. Nevertheless, the USCIS is now set to move forward with its plans to begin the fee collection.
When Will the Registration Start?
On November 7th, the USCIS finally announced that the $10 non-refundable fee will commence and will become mandatory as soon as it implements the new H-1B cap registration requirement. Though the timeline for the registration has not been announced, the USCIS stated that it would begin with the FY 2021 cap season once the online registration technology has been certified ready for public use.
Prospective H-1B petitioners and beneficiaries for the next cap season should stay up-to-date as the agency is likely to make the announcement 2019 ends. According to the new rule, petitioners will have to first register their H-1B beneficiaries before submitting the petition properly with supporting evidence if the registration is selected in the cap lottery.
With this development, employers will need to apply for registrations earlier than April. Here at Immi-USA, we are closely following the development of the H-1B cap registration and will ensure you do not miss out on the latest information.
How Will the Registration Work?
While the H-1B registration is entirely new, from all indications, it seems to be an easy process. To avoid a rush, the registration will begin at least 14 days before the opening of the H-1B filing window for each fiscal year.
This means petitioners will have access to the designated online portal no later than March 18th, which will give them enough time before the April 1st H-1B filing window. The USCIS will make an announcement about the registration at least 30 days before it opens.
How Will the USCIS Select H-1B Applicants from the Registration Process?
After the registration period, the USCIS will conduct a random selection from the pool of submitted registrations. This is as opposed to the previous method of conducting the random selection from a pool of petitions. Going by H-1B historical trends, it is expected that the number of registered applicants will exceed the allotted 85,000 visas.
However, if there is an insufficient number of registrations during the initial registration period, the USCIS will open an additional period to allow more registrants. In any case, once the limit has been reached, the random selection will be made. The unselected applicants will remain on reserve for the next filing year.
However, this does not mean they will be allowed to carry over the registration to the following year. Each petitioner will need to repeat the registration for their unselected beneficiaries if they are still interested in obtaining an H-1B the next fiscal year.
How Do I Know If I Am Selected?
The USCIS will notify the selected registrants with the details of their petition process, including the designated period in which to file petitions. Prospective employers will be given a period of 60 days to properly complete and submit H-1B cap-subject petitions for the selected beneficiaries.
The petition will be strictly for the named beneficiary in the selected registration and would not allow employers to substitute beneficiaries. Failure to file a petition for the named beneficiary within the stipulated time frame will lead to forfeiture of eligibility during the active fiscal year.
Are Multiple Registrations for One Beneficiary Allowed?
While an employer can submit petitions for as many employees as they would like, an employer will only be permitted to submit a registration once for each beneficiary. This is to guard against abuse of the system. As a petitioner, you will be required to provide an attestation showing your intention to file an H-1B for a beneficiary. You can only list one employee on a single registration, and you cannot edit a submitted registration once the USCIS has received it.
How to Make the $10 H-1B Payment
According to the final rule, the DHS will make use of pay.gov for the payment portal to process the payment on the back end. However, this does not mean that petitioners must create a pay.gov account to pay the $10 fee.
As a registrant, you will only need to enter in savings or checking account information to do an Automated Clearing House (ACH) or credit/debit card information to pay via card. The fee can also be submitted by an attorney or representative using a G-28 Notice of Entry Appearance. Keep in mind that the registration payment cannot be made with cash, certified check, or money order.
Are Batch Payments Allowed?
In the final rule, the DHS confirmed that the registration system will allow for batch filings to pay the fee for multiple H-1B registrations submitted simultaneously. This was a response to some commenters who suggested that it would be easier if the system supports bundle H-1B registration fees for multiple registrations.
The H-1B is one of the most sought-after nonimmigrant U.S. visas and there are many U.S employers who employ multiple H-1B workers year in and year out. Therefore, it is reasonable to have a flexible registration process that will save time for these petitioners.
For example, with this provision, one registrant may submit five registrations at one time and pay a fee of $50 to cover for all the five registrations. There is no limit to the number of registrations you can submit at one time. You can also submit in multiple batches if necessary.
For example, a registrant may submit five registrations on March 2nd and pay a fee of $50, and a batch of eight registrations on March 15th and pay a fee of $80. Just ensure that you complete all your registrations within the designated period.
Impact on Small Entities
Some of the public comments on the final rulemaking expressed concerns that larger organizations with multiple H-1B beneficiaries could flood the system, crowding out smaller petitioning firms. The DHS, however, allayed such fears stating that it has already put several safeguards in place to prevent that.
The system will also be monitored closely to ensure that each registrant follows due process. Additionally, it is estimated that approximately 78% of the selected H-1B petitioners were small entities. This means the larger share of the allotted visas has been going and will still go to this category.
Will the New Registration System Impact the Existing H-1B Application Process?
Apart from the $10 fee and the overall extended processing time, the registration does not indicate any other changes to the existing H-1B process. Petitioners and beneficiaries will still need to go through the Labor Condition Application process. Although they may need to wait until they have been selected from the registration before acquiring an LCA.
Also, the same application process will still be followed by selected applicants. For the selected registrations, the I-129, Petition for Nonimmigrant Worker will be submitted to the USCIS to request for H-1B visa approval. The existing 65,000 and 20,000 limits for the regular and master’s cap will also remain the same.
How Should Employers Prepare for the New System?
The most important thing is to stay informed by following developments regarding the latest news about the 2021 H-1B season. You must also prepare by getting all of the necessary documents ready for the process beforehand. With timely preparation, you will be able to overcome the potential hurdles with your registration, LCA, and petition processes.
We will also advise that you work closely with your immigration attorney and ensure that all of the evidentiary documents for both the employee and the employer are gathered before February next year. When registration opens next year, you don’t want to be caught off guard.