5 Ways of Improving Your Chances of Filing a Successful H-1B CAP Petition

In 2020 the USCIS implemented a new electronic H-1B CAP registration process. What was once a painstaking process of filing entire petitions with filing fee checks (not to mention legal expenses), has now been simplified. Registrants provide basic information and pay a $10 registration fee to be considered for the CAP. Petitioners are granted 90-days to file petitions. There is more than one draw and petitioners are notified of additional H-1B selection throughout the year. Those with selected registrations will have their?myUSCIS?accounts updated to include a selection notice, which includes details?about?when and where to file.

For last year, the Service announced that registrants in general were very satisfied with the system with a satisfaction score of 4.87 out of 5. Interestingly, USCIS reports that close to 50% of the registrations requested consideration under the advanced degree exemption (this is where the beneficiary of the H-1B petition has a master’s degree or higher from a U.S. institution). In 2021, there were close to 40,000 petitioners seeking to file H-1B petitions.

The USCIS further reported that in 2020, they received 274,237 registrations. That number grew to 308,613 in 2021 and based on well-informed estimates, is likely to grow by at least 20% this year. The Service uses a random selection process to identify and select candidates. The selection pool is considerably larger than the number of visas available each year because not all petitions are likely to be approved.?In fact, in 2020 (FY2021), the USCIS had two draws for the year and selected candidates in April and August 2020. This year, the Service has had additional selections in July and November of 2021. The current selection is open until February 23rd. ?

Here are a few suggestions to improve proper CAP registration and successful H-1B filing.

1.??????Make Sure to Properly Register to File Petitions

To submit an H-1B registration, you must first create a USCIS online account. You may create a myUSCIS account for H-1B CAP registration as early as February 25th.?The USCIS reported that last year, the most common top two user errors were:

• Creating the wrong type of account; and
• Entering the same beneficiary more than once.

Make Sure You Create the Right Type of Account. There are three types of USCIS online accounts:

Applicant/petitioner/requestor account – This type of account is for individuals to prepare and file petitions, or other benefit requests. You cannot use this account type to prepare or submit H-1B registrations.

Attorney/representative account – This type of registration is for Attorneys who file H-1B registrations on behalf of a prospective petitioner.

Registrant account – This is when the petitioner wants to participate in the H-1B registration process, regardless of whether the prospective petitioner will be using an attorney or accredited representative to submit the registration.

?2. Avoid Duplicate Filings

The matter of duplication is triggered by not just one petitioner filing multiple registrations for the same individual, but filings by related entities as well. Matter of S- Inc. addresses the prohibition on multiple H-1B filings by “related entities (such as a parent company, subsidiary, or affiliate). It clarifies that the term “related entities” includes petitioners, even when there is no direct corporate ownership and control. The registration system allows clients to download a .csv file. We use this in our office to verify duplicate filings.

3. Check Eligibility to File in the Advanced Degree Exemption

There are several universities that offer master’s degree or higher that are not considered eligible for the master’s Cap. ?Eligible beneficiaries must have earned a master's or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)). In turn, an “institution of higher education” is defined as a public or nonprofit educational institution that:

is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the [U.S. Secretary of Education] for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

Accreditation status may be verified online at the Department of Education website. It is also important to know that the USCIS looks at the accreditation status of the University at the time of degree conferment and not at the time the benefit is sought. This was clarified in Matter of A-T- Inc.

Another important criterion for eligibility is whether the beneficiary has earned or will earn the degree prior to the filing of the petition. If the beneficiary is selected under the advanced degree cap and has not earned a qualifying master’s or higher degree from a U.S. institution of higher education at the time the petition is filed, the petition will be denied or rejected.

4. Update Social-Media and Online Information

Petitioners should pay attention to their website and publicly available information about the company. While there is no way to ascertain the logic used by the random selection algorithm, it helps to update contact information and provide the latest information on your website.

5. Check and Update VIBE

Finally, but most significantly, we believe the client’s VIBE profile plays a significant role in the final outcome of the H-1B petition. The web-based?Validation Instrument for Business Enterprises?(VIBE) is a tool designed to enhance USCIS’ adjudications of certain employment-based immigration petitions and applications. According to the USCIS website, VIBE uses commercially available data from an independent information provider (D&B) to validate basic information about companies or organizations petitioning to employ certain noncitizens and to validate the basic information about the companies or organizations.