usavisanow.com – Immigration Law Office of Eran Regev, Esq.

Department of Homeland Security (DHS) has proposed a fee of $10 per H-1B petition. The agency considers this to be an “appropriate, nominal fee” to recover some costs involved.

In January 2019, DHS published the rule establishing an H-1B electronic registration system. At that time, no fee was proposed, but the “door was left open.” In mid-August, DHS announced that there would be a fee.

As to what information will be required, that is still a bit up in the air – again, the door is left open by DHS. The agency wants enough information to be able to check for fraud, duplicate registrations filed by the same company, and to ensure that those selected during the registration period ultimately file H-1B petitions. In addition to company identification, each registration would include the beneficiary’s:

Full name
Date of birth
Country of birth
Gender
Passport number

Each registration also will require the petitioner to complete an attestation about the “bona fides” of the registration. Frivolous registrations, DHS warns, “may be referred to appropriate federal law enforcement agencies for investigation and further action as appropriate.” Under a “catch-all,” DHS could require: “any additional basic information requested by the registration system to promote certainty.”

Some concerned about frivolous registrations suggested that information include job title, worksite address, salary offers, SOC code, LCA wage level, and specific educational qualifications. Others suggested including disclosure of any recent labor violations or disputes and EEOC complaints and whether the petitioner is H-1B dependent. DHS rejected these ideas (for now), noting that much of that information would be used to review eligibility once an H-1B petition is filed.

Questions remain about what DHS does with the information it gathers during the electronic registration. In accordance with the Administration’s “Buy American, Hire American” Executive Order, DHS is already gathering and sharing much information on its H-1B Data Hub. The public can search the number of H-1B approvals and denials by company and by year. The public also can see, by employer, the number of approved H-1B petitions by salary and degree type. In addition to making the information public, DHS has stated in a description of the H-1B registration tool that it “may share the information with other Federal, State, local and foreign government agencies” and “may also share [the] information, as appropriate, for law enforcement purposes or in the interest of national security.” The full scope of this statement is not yet known.

It is unclear whether the electronic registration will be ready in 2020 or when the promised trial period for stakeholders will occur.

From uscis.gov on 6/7/19:

On June 10, we will begin premium processing for all remaining FY 2020 H-1B cap-subject petitions.

Starting on that date, petitioners may file Form I-907, Request for Premium Processing Service, with the USCIS service center that is processing their petition.

On March 19, we announced that we would offer premium processing in a two-phased approach during the FY 2020 cap season to best manage premium processing requests without fully suspending it.

In the past few years, we suspended all premium processing for H-1B petitions due to high demand.

Based on feedback from the public, we are using this phased approach to benefit petitioners and ensure efficient premium processing.

The first phase, which started on May 20, included FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase includes all other FY 2020 cap-subject petitions.

At this time, premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available.

Pre-paid Mailer Temporary Suspension

Starting on June 10 and continuing through the end of June 24, we will not use pre-paid mailers to send out final notices for premium processing for FY 2020 cap-subject H-1B petitions not requesting a change of status.

Instead, we will use regular mail. We will be doing this due to resource limitations as we work to process all premium processing petitions in a timely manner.

The process for printing approval notices and sending them by regular mail is fully automated, whereas using pre-paid mailers requires a separate and more time-consuming manual process.

As such, and given the initial surge of premium processing requests for H-1B cap petitions and its impact on USCIS resources, using pre-paid mailers may actually delay the issuance of an approval notice compared to the standard process, or otherwise negatively affect our ability to timely process premium processing petitions.

After the two-week period, we intend to resume sending out final notices in pre-paid mailers provided by petitioners, when operationally feasible.

On August 5, USCIS will begin rejecting Form I-129, Petition for a Nonimmigrant Worker, petitions that do not include the petitioner’s or applicant’s name and primary U.S. office address in Part 1 of Form I-129.

USCIS currently rejects Form I-129 for several reasons. These include, but are not limited to, lack of signature, incorrect fees, or unauthorized third party signing on behalf of the petitioner.

DHS regulations require every form to be submitted in accordance with the form instructions, and allow USCIS to reject any benefit request that is not filed in compliance with the regulations governing the specific benefit request. See 8 CFR 103.2(a)(1) and 8 CFR 103.2(a)(7)(ii)(C).

The petitioner’s or applicant’s primary U.S. office address in Part 1 of Form I-129 must not be the address of the petitioner’s or applicant’s outside counsel or clients. Failure to include the petitioner’s or applicant’s name or providing the address of the petitioner’s or applicant’s outside counsel or clients in Part 1 creates unnecessary delays in the adjudication of Form I-129 and may result in its rejection.

The Instructions for Form I-129 state, in relevant part:

Petitioner Information
Complete the “Legal Name of Petitioner” field (if the petitioner is an individual person or a company or organization). For mailing address, list the address of the petitioner’s primary office within the United States.

In many instances, the petitioner’s or applicant’s primary U.S. office address will determine the filing jurisdiction. Information about where to file Form I-129 is available on the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page.

Form I-129 petitions that USCIS rejects due to missing information can generally be refiled with the required information and fee. However, there are instances when a refiled petition or application would be rejected, such as when a statutory cap-subject petition is resubmitted after USCIS has received a sufficient number of petitions projected as needed to reach the congressionally mandated numerical limit.

From USCIS.gov on 5/20/19:

On May 20, 2019, the Texas Service Center will begin processing Form I-129, Petition for a Nonimmigrant Worker, for certain H-1B cap-exempt petitions requesting:

• A change in previously approved employment;
• A change of employer;
• Concurrent employment;
• Amendments;
• A continuation of previously approved employment without change with the same employer;
• A change of status to H-1B; or
• Notification to a U.S. Consulate or inspection facility (port of entry or pre-flight inspection).

This does not include H-1B petitions for cap-exempt entities, petitions that are cap-exempt based on a Conrad/Interested Government Agency (IGA) waiver under Immigration and Nationality Act Section 214(l), or petitions where the employer is located in Guam or the beneficiary will be performing services in Guam.

The Texas Service Center will share this workload with the California Service Center, Vermont Service Center, and Nebraska Service Center to balance workloads and provide flexibility as USCIS works towards improving processing times and efficiency.

Petitioners filing any of the above H-1B petitions should file their Form I-129 at the address indicated on the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page.

Starting July 19, 2019 , USCIS may reject any of these petitions that are filed at the wrong service center.

Texas Service Center Filings

File Form I-129 with the TSC if the petitioner’s primary office is located in: