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:
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.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.