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.
Congressional negotiations on federal spending for the remainder of FY 2019 remain very active. If Congress and the President can't come to an agreement on a spending bill or continuing resolution by midnight December 21, 2018, approximately 25% of government functions will shut down.
When it comes to immigration, agencies that would be affected by a government shutdown include the Department of Homeland Security and its immigration-related components (CBP, ICE, USCIS, CIS Ombudsman), the Department of Justice (EOIR), and the Department of State.
The Department of Labor (DOL) would not be affected by a shutdown this year. On September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.
Generally, if the government shuts for budgetary reasons, all but "essential" personnel are furloughed and are not allowed to work.
USCIS: USCIS is a fee-funded agency, so most business will continue as normal. Exceptions are -Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers.
DOS (Department of State): Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and "life or death" emergencies.
CBP (Customs and Border Protection): Inspection and law enforcement personnel are considered "essential.” Ports of entry will be open; however, processing of applications filed at the border may be affected.
ICE (Immigration and Customs Enforcement): ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
EOIR (Executive Office for Immigration Review): EOIR's detained docket is typically considered an essential function and would therefore continue to operate. During the 2013 shutdown, EOIR continued to accept court filings, even in non-detained cases.
DOL (Department of Labor): The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC's web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold.
CIS Ombudsman: The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.
For any questions about how a shutdown would affect you or your employees, call Elaine Martin, Dallas immigration lawyer.
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.
Ms. S. and her husband wanted to invest in a hotel/housing business in an under-served part of the United States. Ms. S. had created a US company, investigated opportunities and invested a small amount of the start-up costs.
After starting the visa application process themselves, the couple contacted Elaine Martin to file an E-2 package with the consulate in Toronto.
We had very little time to prepare the application before the clients hoped to enter the US. In addition, there was no business plan and a complicated source of funds trail. Elaine Martin worked with a third party to create the business plan (requiring multiple rewrites), researched the local business needs by contacting local government officials to discuss the housing shortage, prepared a detailed spreadsheet tracing the funds, and compiled the E-2 package to conform to the consulate's strict requirements regarding format and size.
On November 14, 2019, Ms. S and her husband were thrilled to be approved for the E-2 visas in Toronto.
The Martin Law Office wishes the couple many years of success and looks forward to seeing the new business expand and grow!
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.