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.
The US Department of Homeland Security (DHS) announced a proposed rule on Friday, November 30, 2018. The new provisions, if approved. would implemented two main changes to the current way of conducting the H-1B cap lottery. The changes would only affect employers who are filing new, cap-subject, petitions. The process for H-1B extensions or amendments is unchanged.
(a) Employers would have to register online before submitting a full H-1B petition. The registration process would ask for information about the company and about the foreign worker. Employers need to send a separate registration for each proposed H-1B employee and registration will start 14 days before the cap season starts (April 1).
(b) USCIS will change the order in which it selects cases in the lottery. Currently, CIS selects the 20,000 Master's degree cap petitions first. Unsuccessful applications are then added to the general pool, and a second lottery is conducted for the 65,000 regular H-1B cap number. The new rule proposes to reverse this - selecting the 65,000 first and then selecting the 20,000 Master's cases from those that were not selected in the first round. CIS estimates that this change would result in approximately 16% more (or 5,340 workers) Master's degree holders being selected in the lottery.
Employers will only need to file full petitions and supporting evidence if their case is selected in the H-1B lottery. This should reduce the cost to employers, who have needed to file a full H-1B package even if the case was not ultimately chosen for processing. The full petitions would be filed within 60 days of the lottery, and CIS might allow for different filing periods to stagger the workload.
For more information about these changes, or other immigration questions, contact Elaine Martin for a free initial phone consultation.
USCIS has announced that it conducted the H-1B lottery on April 11, 2018. USCIS received just over 190,000 H-1B petitions this year, exceeding the the statutory cap of 65,000 and the master’s cap of 20,000, as expected. The number of application is down from last year, however, when 199,000 H-1Bs were filed.
USCIS uses a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019. USCIS conducted the lottery for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.
USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing. USCIS will send receipt notices to petitioners and their counsel for those cases selected in the lottery. Those mailings should begin right away but can take some weeks to complete.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:
U.S. Citizenship and Immigration Services (USCIS) has unexpectedly announced that it will temporarily suspend premium processing for all H-1B cap petitions that are filed for Fiscal Year 2019. This affects both regular and master's degree cap petitions that lawyers will be filing on April 2, 2018. The suspension is expected to last until September 10, 2018.
USCIS states that the reason for suspending Premium Processing is so that the agency can:
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.