U.S. Employers often struggle with unreasonable deadlines for filing visa petitions for their international personnel. To address the issue, USCIS has recently introduced a useful, and still glitchy way to file H-1B visa petitions online.
Hurdles and Risks Filing Paper H-1B Petitions:
Filing paper petitions with USCIS comes with various hurdles and risks for businesses. USCIS often takes several weeks to issue receipt notices, and in some cases, receipt notices do not ever arrive. Items can be lost in transit, misplaced checks, missing pages on forms, and myriad other potential errors can upend an entire petition, causing issues ranging from weeks of delays to completely missing key deadlines. For businesses, this can result in project delays, extra legal fees, loss of revenue, and even the loss of a valuable employee.
During CAP H-1B season, which ended July 1, 2024, for this fiscal year, the potential hurdles were exacerbated by the sheer magnitude of cases that USCIS is adjudicating. Congress has provided U.S. employers with a limit of only 85,000 new visas for their highly trained international personnel, but the business need is much higher. For Fiscal Year 2025, U.S. companies registered more than 470,000 international personnel, and 114,017 international employees were selected in the H-1B Cap. The increased number of filings usually coincides with more errors from both couriers and USCIS. These mistakes not only add complexity to the H-1B visa process but could lead to the employee losing status in the United States simply due to logistical issues. In order to avoid missing deadlines, in cases that had already been submitted, but not receipted by USCIS, our firm has turned to filing petitions online with USCIS.
USCIS has lost a CAP H-1B petition that we filed for our metal manufacturing client in early April. USCIS returned the filing fee checks and nothing else back to the employer more than a month later. We then refiled the petition racing against the CAP H-1B deadline and received no notice of receipt from USCIS for three weeks. With only one work week remaining before the CAP deadline, our team chose to file online, working closely with the client to set up the online filing process. As a result, moving to file online, we were able to file the petition, secure an instantaneous receipt notice, and receive an approval, all within a 3-day window.
Why Employers Should Consider Online Filing:
Online filing is a lower-risk method of filing that can produce faster results than paper filing. While the Cap H-1B deadline is now passed, online filing can be helpful in filing H-1B transfers and extensions more quickly, but it does take some additional effort to get the proper USCIS accounts set up and linked with client accounts. Even for Employers who wish to continue to file physical petitions, online filing is a necessary backup plan in case of an urgent deadline. Online filing enables the employer and employee to receive a receipt notice immediately upon submitting the petition and helps avoid the potential to lose documents in transit. Online filing also contains a tool that automatically calculates the filing fee, which can be very helpful after the recent fee increases from USCIS took effect, making it very difficult to determine the proper filing fee. Per USCIS, even if the employer submits an overpayment, the file will be rejected. One small error in the filing fee check could cause the entire petition to be rejected and cause the petitioner to miss the filing deadline. With online filing, the USCIS calculates the fee automatically during the last step of submission.
Current Drawbacks:
Currently, online filing contains some hurdles to fast filing, including:
Technical Issues:
Slow webpages, error messages, and bugs are to be expected, causing delays in drafting and filing.
H-4 Visas Cannot be Filed Online:
There is no way for H-4 visas to be filed consecutively with H-1B petitions online. This can lead to delays in the international employee’s family receiving/maintaining status in the United States.
What U.S. Employers Should Do to Transition to Online Filing:
Although USCIS’ online filing is still in its nascent phase, it is a promising development that can not only come in handy for avoiding deadlines but may soon replace paper filings completely.
As USCIS continues to improve online filing and address pitfalls, U.S. employers should:
Collaborate with attorneys to set up USCIS accounts and line up online payment capacity; and
Consider making online filing for H-1B personnel a part of their business strategy.
Training:
If you are an Employer looking to learn more about available visa options and lawful permanent residency process, you might consider taking an online training through Corporate Immigration Compliance Institute. Trainings can be found here: https://www.usimmigrationcompliance.com/get-certified
Sam Short Law Clerk
Mdivani Corporate Immigration Law Firm
