After months of pent up political excitement over the Iowa caucus, Monday night turned out to be anything but. The State’s Democratic leadership blamed the inconclusive results on technological problems. The common refrain among party loyalists, “What went wrong?” According to the Associated Press (AP), “the Iowa Democratic Party says an app created to compile and report caucus results malfunctioned due to a “coding issue,” delaying the count. The party says there are no signs of hacking or other intrusion and that the underlying data is “sound.” The problem was that the app only reported partial data when the precinct chairs sent the information to party headquarters. Again, according to AP, the Iowa Democratic Party didn’t roll the app out to its 1,678 caucus locations until a few hours before the meetings began Monday night. Party officials had said they would not be sending the new mobile app to precinct chairs for downloading until just before the caucuses to narrow the window for any interference, and there wasn’t widespread pretesting by volunteers running the caucus sites.
On December 6th, the USCIS announced that it has completed a successful pilot testing phase and is implementing the registration process in the next H-1B lottery. Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee. Unfortunately, this pilot testing did not include any stakeholders. More importantly, questions that legal practitioners have been grappling with are yet to be addressed.
The government’s ongoing efforts to modernize includes the Department of Labor’s (DOL) recently implemented Foreign Labor Application Gateway or Flag System. After its implementation, the DOL began experiencing a series of technical glitches. The DOL has a running FAQ addressing these technical issues that only appear to be growing. In fact, the DOL’s FLAG system was implemented to replace an existing online filing service known as iCERT. Again, neither system worked flawlessly on day one; the ongoing efforts to provide technical support is evidence of the enormous intricacies involved in implementing an online solution.
USCIS Deputy Director Mark Koumans stated, “by streamlining the H-1B cap selection process with a new electronic registration system, USCIS is creating cost savings and efficiencies for petitioners and the agency, as only those selected will now be required to submit a full petition.” While this sounds laudable, it is not clear if the USCIS is adequately prepared for the challenges posed by the adoption of a new and untested process. If the DOL’s experiment (and the IOWA caucus night) is any indication of how the initial weeks of an untested system may turn out, employers have every right to be worried. Significantly, the final rule implementing this new electronic registration makes multiple references to what could happen if this system is suspended. Specifically:
USCIS may suspend the H-1B registration requirement, in its discretion, if it determines the registration process is inoperable for any reason.
In other words, USCIS reserves the right to suspend the electronic registration system at any point during the registration process for any reason (read technical glitch). This could be even more of a problem if a determination of “inoperability” requires petitions to be filed on or before April 1st. The USCIS may simply go back to the filing process as it existed last year. In which case, petitioners will be forced to file petitions the “old-fashioned” way, by mail and with the required forms and supporting documentation.
Therefore, in order to be proactive and ensure H-1B CAP petitions are filed on time and with the least amount of disruption, it may be prudent and certainly proactive to commence processing of H-1B petitions as in previous years. I believe it is better to be prepared than find oneself in a situation like the Democrats did in Iowa on Monday night!