Analysis

Pandemic Creates Roadblocks During H-1B Visa Cycle

By Suzanne Monyak
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Law360 (April 3, 2020, 10:42 PM EDT) -- Businesses seeking to hire foreign workers under H-1B specialty occupation visas are encountering new obstacles as they attempt to predict future hiring needs and file visa petitions remotely in the face of the coronavirus pandemic.

U.S. Citizenship and Immigration Services saw a record-high number of H-1B visa requests during this year's cycle, according to data released Wednesday by the agency, after rolling out a new electronic registration system allowing employers to submit their candidates for March's competitive lottery without first preparing their full visa applications.

Many immigration attorneys had approached the new system with some skepticism, wary of potential technical glitches that, according to some, have come to pass to a degree.

And with the U.S. economy changing drastically between when registration opened March 1 and when employers were notified of visa selections at the end of the month, employers — who now have three months to file full petitions for candidates who were picked — are facing a new kind of uncertainty.

Susan Cohen, chair of Mintz Levin Cohn Ferris Glovsky and Popeo PC's immigration practice, said that while it "remains to be seen" what effect businesses downsizing will have on the H-1B system, she suspects that some employers will ultimately choose not to request the visas they secured in the lottery, based on the currently surging unemployment numbers.

"It's going to get worse before it gets better, and that will impact employers' actions," she said. "They may choose not to file petitions."

Sudden Change in Outlook

When employers submitted their requests for H-1B workers this year, the U.S. labor market was tight, with unemployment hovering below 4%.

But on March 31, the last day employers were notified of the lottery's results, the U.S. economy was unrecognizable; nearly 10 million people filed for unemployment in the last two weeks of March alone as businesses shuttered and Americans started to stay home under local orders.

"It only makes sense that if you're just looking at the laws of probability, there are going to be some H-1B beneficiaries who had job offers a couple of months ago who no longer have job offers today," said Andrew Greenfield, managing partner of Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C., office. "That's an inevitable consequence of a recession."

Becki Young, an immigration lawyer at Grossman Young & Hammond, said she has a fitness company client that had a registration selected in the lottery but decided not to proceed with the candidate because the business had to close. A few of her other clients would have been in the same boat but hadn't been selected, she said.

Angelo Paparelli, a partner at Seyfarth Shaw LLP in Los Angeles, also questioned whether employers who filed registrations a month ago will still be "as eager to actually apply for the sponsored workers who were selected in the lottery under the present circumstance."

"Many employers are asking me for advice on furloughs and hours reductions, and things of that sort," he told Law360.

Young, who has a number of clients in the restaurant and hospitality sectors — which have been hit particularly hard by coronavirus-related closures — said she has also fielded calls from clients over the past few weeks asking if they can lay off, furlough or cut hours for employees on H-1B visas.

Before the system opened, USCIS had indicated that employers are expected to follow through and file petitions for registrants who are selected, in an effort to deter businesses from flooding the system with registrations they may not actually have the work for.

"That was then, and this is now," Cohen said. "I would expect that USCIS would understand that it might no longer be possible."

But some companies are nonetheless choosing to be optimistic with their hiring, Young said, including one restaurant client of hers that decided to proceed with its H-1B application. Some clients that are worried about staying afloat are even the same ones pursuing H-1B petitions, she added.

It's "really too early to tell" if many employers will opt out of filing full petitions in light of the closures and loss of business, she said. Of her clients that were selected, all but the fitness business have decided to move forward.

"I think that businesses that are planning ahead and that are well-capitalized, based on our experience, may still proceed," Young said.

If enough employers don't follow up with full petitions, it could free up visas for workers who weren't selected the first time around in the lottery. This year, employers requested 275,000 workers for just 85,000 slots, 20,000 of which are reserved for people with advanced degrees from U.S. universities.

While Greenfield said it's possible that unselected H-1B candidates in industries that are still hiring might get a second shot, he cautioned against banking on new slots becoming available.

Technical Difficulties

COVID-19 isn't even the only challenge facing business immigration attorneys this filing cycle.

While the agency's first-ever preregistration system avoided any major crashes, attorneys did report that some registrations were wrongly denied as duplicates in cases where the attorney had deleted a prior registration for a candidate, like for a typo, and then resubmitted it.

Diane Rish, associate director of government relations at the American Immigration Lawyers Association, said that around 40 attorneys had reported that a little over 100 registrations had been wrongly denied.

Greenfield said that Fragomen, which has hundreds of immigration lawyers across the globe, had run into the same issue.

"That's a problem because that means [the candidate] never got a fair shot of being selected in the lottery. And what USCIS is going to be able to do about that post facto, I don't know," Greenfield said.

Michael Nowlan, co-leader of Michigan-based Clark Hill PLC's immigration practice, said his firm had eight registrations denied as duplicates that he said had "absolutely" not been submitted twice.

"The lottery process is cruel," he said. "But to have a glitch like this be the reason that somebody's not selected I think is devastating."

Nowlan said he's hopeful that some of those registrations could be picked up in a second round if not enough employers submit petitions to meet the annual visa cap due to the economic downturn. He also urged USCIS to probe the issue.

Rish also reported some glitches with attorney representation forms, known as G-28s, and Cohen said attorneys at her firm reported a few system outages during the filing window.

A USCIS spokesperson said Friday that the agency is continuing to review inquiries by registrants but "has not currently found any duplicate registration invalidations due to technical issues associated with the registration system."

Pointing to the reported issues, some attorneys questioned whether the system was rolled out too soon. The agency had waited until December to confirm the system would be ready in time for the spring lottery, which created "a lot of unnecessary angst" and uncertainty in the business community, Paparelli said.

But in a way, the new system came just in time to offer an electronic option as the world went remote, some said.

"Looking back now, I would say that we feel like we're particularly glad this was the year that they did the electronic registration in light of everything that happened," Cohen said. "We don't get many gifts from USCIS, but I consider that actually a gift, that we could do the whole thing electronically."

Logistical Problems

While the electronic system may have eased the process for attorneys working remotely, albeit with some growing pains, attorneys have called on USCIS to make further accommodations for those who now have to file full H-1B petitions for selected candidates.

Those petitions are due in 90 days, and they must be submitted on paper through the mail.

Rish said that even this could pose challenges for immigration lawyers whose offices are closed and may not have access to printers and scanners to pass forms along to clients.

"Ninety days may seem like a lot, but under this current environment … there's just more logistical challenges, to getting to the post office, getting forms signed," she said.

USCIS has relaxed some of its requirements in response to the pandemic, including by allowing scanned or photocopied original signatures and giving employers additional time to respond to deficiency notices on visa applications.

But Rish said it's not enough. AILA sent several letters to USCIS last month asking the agency to extend the 90-day filing deadline, allow digital signatures and let attorneys pay filing fees by credit card, rather than requiring paper checks. The USCIS spokesperson said the agency "will continue to monitor the COVID-19 pandemic" and "assess various options related to temporary worker programs in coordination with [the Department of Homeland Security] as the situation evolves."

Attorneys also have outstanding questions for the agency, including if the labor notice required to be posted at H-1B work sites can be posted electronically if offices are closed. They also fear that closures of USCIS offices could lead to visa processing delays and leave temporary foreign workers with gaps in work authorization.

Paparelli stressed the importance of resolving these issues during a pandemic, noting that many foreign workers are health care professionals fighting the virus. More than a quarter of physicians are immigrants, according to New American Economy, and nearly 30,000 beneficiaries of the Obama-era Deferred Action for Childhood Arrivals program are health care workers.

"These are the kinds of things that are just not being answered," Paparelli said. "It may seem like inside baseball to people outside the immigration world, but it really has life-or-death consequences."

--Editing by Aaron Pelc and Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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