H-1B Cap Season Starts.

It is time for employers to start thinking about the H-1B cases that they want to file for fiscal year 2020 (starting October 1, 2019). Cases must be filed in the first week of April, with the earliest H-1B start date being October 1, 2019.

Based on the administration's current extreme scrutiny of H-1B petitions, preparing these cases will take longer than in previous years. USCIS started scrutinizing all H-1B petitions very stringently last year, and requested additional evidence in many cases. Until last year, it was rare to get asked for this level of detail. Now we can expect that CIS will require some or all of the following:

• Specialty occupation. Detailed evidence that the position duties really require a bachelor’s degree. A general description of the position is not enough, even if it seems obvious that it always requires a degree (e.g. civil engineer). Now we need to explain (in excessive detail) the tasks to be performed, providing a detailed description of duties and a direct connection between the employee's field of academic study and the position's actual duties and responsibilities. This involves providing job postings, letters from people in similar industries, analyzing employer’s past hiring practices, samples of employee’s work product, and detailed legal arguments, among other evidence.
• Employer-employee relationship - USCIS may ask for proof that the foreign national is really working directly for the employer, and not contracted to a third party. USCIS requests documentation proving that the relationship between employer and employee is direct, meaning that the employer has the right to control the H-1B worker's daily work schedule and product. 'Control' also includes the ability to directly hire, fire and supervise the potential worker.
• Availability of H-1B work - USCIS has challenged H-1B filings and asked employers to show that there is enough work for the period of employment (usually 3 years). This is an improper overreach and I have successfully argued this point in a response last year.
• Wage Survey - H-1B regulations require that the employee pay the H-1B worker the higher of (a) the Department of Labor’s prevailing wage as listed in a DOL survey; or (b) the actual wage paid to similar workers at the worksite. CIS has challenged the use of wage surveys, requesting additional proof that the survey occupation chosen by the lawyer is really comparable to the position offered. Another wage survey challenge occurs where CIS argues that using a Level 1 salary from the four-level survey shows that the position is not really specialized.

Some of my responses to these Requests for Evidence (RFE) from USCIS have included 25+ exhibits, running to hundreds of pages.

To prevent these RFEs (which have delayed many approvals past the October 1 date), most lawyers plan to file H-1Bs this year that are more detailed than ever. This means more preparation time will be needed.

H-1B Cap Basics.

H-1B filings for people not currently in H-1B status are subject to the cap, unless the cases are for cap-exempt employers. H-1B extensions are not cap-subject. Employers can file H-1B petitions six months before the requested start date, so employers can file on April 1 for an October 1 start date.

CIS regulations allow for a minimum filing period of five business days, so CIS must accept all filings received in the first five business days of April. If CIS receives enough cases to meet or exceed the cap in those five days, the cap closes and CIS conducts a lottery to determine which cases will be accepted. In the unlikely event that there are still cap numbers available after the first five days, CIS will continue to accept filings until the numbers run out. 

USCIS can approve 65,000 new "regular" H-1B applications every year, and an additional 20,000 applications from people with US advanced degrees. That may seem like a lot, but in 2018, USCIS received over 190,000 H-1B filings in the first five days of April.

It is almost guaranteed that there will be a lottery again this year, so it is critical to get the H-1B petitions filed in the first few days of April. Since it can take a few weeks to prepare the paperwork, some employers have already started the process. It is important to allow for enough time to gather supporting documents such as academic transcripts, and to get an approved LCA (Labor Condition Application) from the Department of Labor. The LCA alone can take 7 days, and the Labor Department is likely to get a flood of LCA applications at the last minute.

if you have any questions about the H-1B process, please contact us for a free phone evaluation.

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