March 19, 2019: U.S. Citizenship and Immigration Services (USCIS) announced the start of the fiscal year (FY) 2020 H-1B cap season, start dates for premium processing of cap-subject H-1B petitions, and the launch of its new H-1B data hub. It also reminded petitioners of its new H-1B cap selection process.
H-1B FY 2020 Cap Season
USCIS will begin accepting H-1B 2020 cap petitions subject on April 1, 2019. Any cap cases filed before that date will be rejected.
Premium processing (PP) will be offered in a two-phased approach during the FY 2020 cap season. USCIS says that this will allow it to manage premium processing requests without fully suspending it as it has done in the past.
Premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available.
New H-1B Data Hub
USCIS announced a new H-1B Employer Data Hub that will be available on April 1. The data hub is part of USCIS’ continued effort to increase the transparency of the H-1B program by allowing the public to search for H-1B petitioners by fiscal year, NAICS industry code, company name, city, state, or zip code. Memners of the public will be able to calculate approval and denial rates and to review which employers are using the H-1B program.
For any questions about H-1B cases, please contact Elaine Martin, immigration lawyer.
The US Citizenship and Immigration Services (USCIS) has announced that it plans to close its offices outside the United States. This would mean the closure of 23 local offices of USCIS, in 20 countries.
On March 12, 2019, the agency said that roughly 70 USCIS employees work in the offices abroad. If the plans to close these offices are finalized, the employees will return to the United States.
Local offices of USCIS handle family petitions for US citizens currently living in those countries, military citizenship applications, and helping people flee persecution in their countries.
Another "important function" of USCIS' international offices is "to provide technical expertise on immigration-related matters to U.S. government agencies abroad, including other Department of Homeland Security components, the Department of State and the Department of Defense," the agency explains on its website.
As reported by NPR, USCIS spokeswoman Jessica Collins announced on Tuesday the agency is in "preliminary discussions" to delegate its international responsibilities to the State Department, or to its own personnel in the U.S. In some cases, the workload would be absorbed by U.S. embassies and consulates abroad.
In a cost analysis conducted last year, USCIS officials estimated phasing out its international offices would save millions of dollars each year. "The goal of any such shift would be to maximize USCIS resources that could then be reallocated, in part, to backlog reduction" at the agency, Collins told NPR in an emailed statement.
In the statement, Collins downplayed the potential impact of shutting all 23 field offices across 20 countries. She provided assurances that the transition would be coordinated with the Department of Homeland Security, as well as the State Department, "to ensure no interruption in the provision of immigration services to affected applicants and petitioners."
For more information, please contact Elaine Martin, US immigration lawyer.
The long-threatened proposal to rescind the H-4 spousal work authorization has finally been sent to the Office of Management and Budget (OMB) for review.
The details of the proposal are confidential and not available for review. OMB has up to 90 days to review the proposal. Once OMB finishes its review, the proposed rule will be published in the Federal Register. There will then be a public comment period of 30-60 days.
If you are a foreign national that will be affected by this change, or an employer of H-1B workers, your comments will be very important in preventing this rule being finalized. It is critical that the government hears personal stories of the devastating impact this will have on US residents and on companies hoping to attract and retain talent.
Until any new rule is finalized, current eligible H-4 holders can continue to apply for new and renewed employment authorization. Given that the proposed rule is a priority for the Department of Homeland Security, and may be enacted very soon after clearing the regulatory steps mentioned above, we recommend that H-4 holders apply for new or renewed EADs as soon as possible, before the program is eliminated.
For more information, and to check your eligibility for H-4 work authorization, please contact Elaine Martin.
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.