Today, January 2, 2019, is the last day to submit comments on the new H-1B proposed rule, “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens.” Below is our comment on the pre-selection system part of the proposed regulation. Readers can still comment electronically through accessing Federal eRulemaking Portal: http://www.regulations.gov and following the website instructions for submitting comments.
December 31, 2018
Samantha Deshommes, Chief,
Regulatory Coordination Division
Office of Policy and Strategy
U. S. Citizenship and Immigration Services
Department Of Homeland Security
20 Massachusetts Ave. NW.,
Washington, DC 20529
Re: DHS Docket number USCIS-2008-0014 – Comment on H-1B Pre-selection System
Dear Ms. Deshommes,
The new H-1B proposed rule for changing the present selection system is absolutely unworkable for 2019. The period for comment ends on January 2, 2019, and there will undoubtedly be tens of thousands of comments that U.S.C.I.S. will have to go through. Then the proposed rule will have to wend its way through the Office of Management and Budget and even your office cannot predict when that agency will finish up with its work on the proposed rule. It is almost a certainty that a final rule will not be ready at the earliest until March or April if even then. The time to implement the rule will also take months as employers will have to submit a form identifying aliens that they wish to sponsor and U.S.C.I.S. would have to conduct the selection process. In just examining that implementation, there will be a period of time from date of final rule – likely 60 days although the proposed rule is optimistic in estimating at least 30 days advance notice – to give fair notice to employers through seminars, symposiums, and FAQs as to how they are supposed to fill out and submit a pre-selection form. Following the deadline for doing such, the proposed rule says that the registration period will last for a minimum of 14 calendar days. U.S.C.I.S. will then take approximately 1 week to assimilate all the applications and run the computerized selection process, and then an unknown period to notify all employers that their pre-application has been accepted (the amount of time that it has normally taken U.S.C.I.S. to run the regular selection and notify employers with receipts is 1-2 months). Following that, employers are to be given 60 days under the proposed rule to file the H-1B cap subject petition for the named beneficiary.
Adding it all up, and taking the most optimistic timeframe in which the final rule is ready by March or April 2019, U.S.C.I.S. is looking 5-7 months from that point (August-October 2019) before the first H-1B petitions can be filed. Even now, many H-1B petitions filed in April 2018 have not yet been adjudicated for over 8 months and U.S.C.I.S. is currently being sued over the delays.
U.S.C.I.S. believes that it will save much time in having a pre-selection process, but that is not true – the agency will spend even more time in pre-selection than it does under today’s system. Petitions may flood in under the present format, but the frontline clerical/cashier personnel only enter them as selection numbers in either regular or U. S. Masters degree categories before running the selection process. For FY-2019, U.S.C.I.S. ran the selection process for both regular and Masters degrees on April 11, 2018, only 5 days after the closing of the acceptance period for cap-subject H-1B’s.
Cost-wise, it appears clear that U.S.C.I.S. is low-balling the cost of implementation and upkeep of the proposed new system by stressing the cost benefits to the public rather than to itself. Even looking at its table 19 of U.S.C.I.S. costs for unselected petitions in FY-2017, such costs were associated with handling and shipping costs which could easily be reduced by shredding rejected petitions rather than sending them all back to the petitioners. Petitioners by and large already keep a copy of their submissions.
The proposed new process only burdens the present system with another layer of bureaucracy which will not help. Even if the initial difficulties are ironed out after the first year (probably FY-2021), there is still much to question. Will it help to force employers to early preselect their candidates long before they are able to submit petitions for them – especially as the proposed rule allows for no substitutions? The minds of organizations and H-1B candidates change over time, and employers either may later decide that the candidate is not suitable or the H-1B candidate decides to change organizations before the time for submitting the petition. The format of the pre-selection application is also a question. Will it ask the employer to also designate the H-1B position? Would it then be stuck with the pre-selection application designation? That would seriously damage the process as the employer may decide that another position is more suitable for the candidate between the time of the pre-selection and H-1B submission. In addition, if acting without counsel’s assistance in the pre-selection application, the employer may unwittingly commit to a non-specialized occupation, which would ultimately doom the H-1B petition.
Given the above obstacles, U.S.C.I.S. should not attempt to rush any change in selection process for this coming H-1B season. For that matter, it should not change the process at all by adding another layer of bureaucracy. It is clear that the present system is not behind the slowness and backlog of H-1B adjudications as the process at this time only takes 5 days from the ending period of acceptance to performing the random selection. U.S.C.I.S. should seriously consider whether the pre-selection process will actually save the government any time or significant monies or simply add more regulation onto an already heavily regulated area.
Thank you for your courtesy and kind consideration.
Very Truly Yours,
Alan Lee, Esq.