USCIS Proposal Expansion of eFilings for all H1Bs
Posted Jan 13, 2006

The USCIS issued Federal Register Notices on December 29, 2005 regarding potential new forms related to H1B eFiling. There are two main forms at issue; Form 60 and Form 41. There are also forms related to account registration for eFiling. At this time, the forms are only proposed, with a comment period of 45 days. One goal of the proposed forms appears to be the move toward a real electronic filing and adjudications system, including creation of a database of each applicants' entire immigration history. This decidedly is an improvement over the current system. It is emphasized that, at this time, the forms and procedures for H1B cases have not changed. The present procedures related to eFiling are available on the USCIS website.

Proposed Form 60 for Cap-Subject H1B eFiling

The proposed Form 60, Petition for Foreign Worker (H1B), would be required for all cap-subject cases. It would be optional for H1B cases in which the beneficiary or petitioner are not subject to the cap. (The instructions on the form refer to the beneficiary as cap exempt. But, presumably what is meant is either that the employer is cap exempt or the beneficiary has already been counted against the cap.) This may require clarification.

Except as discussed below in relation to Form 41, there is no additional fee for eFiling; all the standard H1B fees apply. The Form 60 is only for H1Bs, unlike the currently used I-129 nonimmigrant petition, with supplements for the various employment-based nonimmigrant categories like L, O, P, etc.

Proposed Form 41 for COS or EOS with Additional Filing Fees

Proposed Form 41, Application for Change of Status (COS) or Extension of Status (EOS), represents a change in current procedure, separate and apart from eFiling. At the present time, the I-129 Form that is used for H1Bs has, essentially, two components. One component is the employer's H1B petition; the other component addresses changing and/or extending the beneficiary's status. These functions are separated in proposed Form 60 and Form 41. With this proposed system, the employer would have to file both the Form 60 and Form 41 in order to extend an employee's H1B status or change a potential employee to H1B. While the reason for this proposed procedural change is not clear, there is a $200 fee for the Form 41, in addition to all of the existing H1B petition-related fees. So, under this new system, the ultimate cost for an H1B would increase by $200 in most cases.

i-Accounts

An employer would have to establish an i-account prior to using either the Form 60 or Form 41. One of the other proposed forms relates to setting up the i-account, as well. Employers will be instructed to update their i-accounts with address, financial, and other information before filing each case.

Supporting Documents & Fee Payments

Instructions on the forms regarding submission of supporting documents just reference the USCIS WebSite. The current information on submitting supporting documentation in eFiled cases can be found on the USCIS website. Generally speaking, it has been necessary to send the USCIS supporting documents after an eFiling is made. It is unclear, however, if any of the current procedures regarding supporting documentation would change if the Forms 60 and 41 were to go into effect.

The proposed eFiling fees would need to be paid by credit card or debit card.

Conclusion

As stated, these new forms are only proposals at this time. With changes in technology, however, it is clear that the movement toward increased eFiling is inevitable. We at the Murthy Law Firm support the USCIS's move to streamline and improve efficiency in processing and adjudicating H1Bs and other petitions and applications. Whether the particular proposed forms will accomplish this goal is yet to be seen. Since there is a 45-day comment period, it is possible that comments provided by stakeholders will affect the ultimate system and the timing of its implementation. Since the Form 60 would be required for all H1B cap-subject cases, it is our hope that it will not be implemented for the FY2007 cap cases, as they can be filed starting April 1, 2006. It might be best to implement this eFiling system after the cap is exhausted for FY2007, since new systems seldom work flawlessly. This will allow for testing on those cases for which such filing is optional.