Mixed reaction to revamped H1B process

Immigration authorities next year will revamp the system of applying for H1Bs, the skilledworker visas that are particularly prized by Silicon Valley tech companies, with the stated aim of streamlining a cumbersome process.

At a time when the Trump administration is clamping down on immigration — and when H1B denial rates have hit historic highs — many immigration attorneys and tech groups said they were reserving judgment about the new system.

Rather than submitting full applications by April 1, workers and companies will register online in March and pay $10 to enter a lottery for the 85,000 annual H1B slots. Only those picked

in the lottery will need to complete the lengthy petitions, which can require thousands of dollars worth of legal assistance. Generally about 200,000 people apply each year for the coveted visas, which consist of 65,000 regular H1Bs and 20,000 for workers with advanced degrees from U.S. universities. (Nonprofits, including some hospitals and universities, are exempt from the 85,000visa cap.)

“The intent behind the rules is good,” said Sharvari DalalDheini, director of government relations at the American Immigration Lawyers Association, noting that the current process is burdensome. “But people are rightly concerned that we don’t know if it will work as predicted.”

“By streamlining the H1B cap selection process with a new electronic registration system, (the government) is creating cost savings and efficiencies for petitioners and the agency, as only those selected will now be required to submit a full petition,” said Mark Koumans, deputy director of U.S. Citizenship and Immigration Services, the agency that oversees H1B visa issuance, in a statement.

Peter LeroeMuñoz, general counsel and vice president of tech and innovation policy at the Silicon Valley Leadership Group, which represents many tech companies, said he was not convinced of the benefits.

“This administration continues to throw up roadblocks for companies that are desperate to fill the need for skilled talent,” he said. With the new system, “there are now two points at which someone can be rejected for a visa,” the lottery and the actual application, he added.

Some attorneys expressed cautious optimism.

“By and large our clients are excited and pleased by the prospect of not having to do fullblown H1B petitions for the lottery,” said Eleanor Pelta, an immigration attorney with Morgan Lewis in Washington, D.C. “The devil will be in the details.”

Among the concerns Pelta and others expressed: Will the electronic registration system break down? That’s what happened in January when the government initiated a new electronic system for H2B visas for seasonal guest workers in industries such as landscaping, recreation and hospitality. It crashed on Jan. 1, its first day in use, under an influx of almost 100,000 applications.

“It just didn’t work and then they had to come up with a BandAid,” said Stuart Anderson, executive director of the National Foundation for American Policy, a nonpartisan think tank. Will easy and cheap preregistration result in a flood of candidates? “The apparent ease of registering will likely invite many more submissions than we had in prior years,”

Pelta said.

More competition in the lottery could particularly affect smaller startups that would be submitting just a handful of applications but would really need those employees, Anderson said. How should applicants be screened? Some attorneys feel that companies should do initial legal reviews to ensure that if a case is selected in the lottery, it will meet the criteria for approval. “It would seem silly to register for a lot of positions that wouldn’t be easily approved,” Pelta said. “So some legal analysis will be required prior to preregistration.” Will there be enough time to prepare the full petitions? Those picked in the lottery will be given 90 days to submit their full application. But that may not be sufficient under an administration with a rejection rate that is soaring. “With increased scrutiny of immigration petitions, it simply takes longer to prepare a comprehensive H1B petition than ever before,” said Jason Finkelman, an immigration attorney in Austin, Texas. “In some cases, we are working with our clients for well over 90 days to gather enough evidence” to support an application as the agency continues to tighten its scrutiny.

Those narrowing parameters are another concern for proponents of the work visas. The immigration agency is expected to shortly revise definitions for specialty occupations that qualify for H1B visas, and to update the definition of qualified “employee/ employer relationships” to exclude workers who perform tasks at a thirdparty site, such as at a client’s offices.

Tech company advocates said that approach is unduly heavyhanded.

“Employers know their business best and need the flexibility to seek the tech talent they need,” said LeroeMuñoz. “Artificially constraining what is a specialty occupation is the wrong way to approach this. Jobs now entail a whole series of skills and backgrounds in ways we could not have imagined in the near past.”

Likewise, he decried edicts about where H1B visa holders can work: “We don’t want to limit ourselves where there are very legitimate business reasons for an employee to work temporarily at a client’s site or at a different location than was initially listed in the application. We have to allow for that natural business flexibility.”

Anderson said changes in those rules may cast a long shadow.

The administration, he said, is trying to “lock in” changes immigration officials have made informally in the way they evaluate petitions “so it’s harder for a future administration to undo it.”