FY2019 H-1B CAP FILINGS – IMPORTANT CHANGES AND ADVISORIES

FY2019 H-1B CAP FILINGS – IMPORTANT CHANGES AND ADVISORIES

18:16 12 January in News Updates

FY2019 H-1B CAP FILINGS

Trump Administration Proposes Changes in H-1B Lottery Procedures

The filing window for H-1B petitions seeking a FY2019 (10/1/18 to 9/30/19) cap or quota number will open on Monday, April 2, 2018.   That will be the first day USCIS will accept H-1B petitions for the 2019 H-1B cap.  The start date of employment for approved petitions is October 1, 2018.

The Trump Administration published its regulatory agenda priorities for 2018, which may result in changes to H-1B lottery procedures.  At this time, it is unknown if the changes will apply to FY2019 H-1B cap filings.  We anticipate an announcement in February as to how and when any changes will be implemented.  If the new rule is announced under the regular process which requires a 60-day notice and comment period, plus time for USCIS to analyze and respond to comments, this would take several months, and would not impact April 2018 filings.  However, if these provisions are issued as an “emergency rule,” which waives the notice and comment requirement, then employers could be in a situation of scrambling to comply with a new registration requirement, and then if their registration is selected, scrambling to timely file the whole H-1B petition for this cap season.   LAC is monitoring this issue very closely and will notify our clients as soon as more information becomes available.

Notwithstanding this possible change, we recommend that employers wishing to file petitions subject to the cap consider initiating those cases now.   If and when the change is announced, it may be too late to prepare for cap-subject filings on April 2.

LAC will begin work on any H-1B cap case at the time it is initiated with our office.  We will prepare as much as possible as soon as possible, unless the petitioning employer directs us otherwise.  If the process changes and the client wishes to suspend case preparation at any time, the client need only notify the LAC attorney and we will suspend or cancel preparation of the case.  Any unearned legal fees will be promptly refunded to the company.

As with every cap filing season, cases initiated late in the season will incur a rush fee.  The fee for cases initiated after Monday, March 12 will be $500; for cases initiated after Monday, March 19, $750.

CURRENT LOTTERY PROCESS

For the past five years the H-1B quota was met as soon as the filing window opened in April, triggering the lottery provision.  This provision requires USCIS to allow employers to continue to submit H-1B cap-subject petitions for five business days.  All of those petitions are then placed in a random lottery to determine which petitions will receive a cap number and proceed to adjudication.

We anticipate that FY2019 H-1B cap-subject filings will again exceed the quota limitations.  Under the current process, in order to be considered in the lottery, petitions must be received at USCIS between Monday, April 2 and Friday, April 6. 

H-1B QUOTA LIMITATIONS ARE AS FOLLOWS

Regular cap (Bachelor’s degree):                      58,200

Regular cap, Citizen of Chile:                            1,400

Regular cap, Citizen of Singapore:                     5,400

Master’s cap exemption (Master’s degree or higher from a U.S. University):   20,000

Individuals who may need a cap-subject H-1B visa

  1. F-1 students currently working pursuant to Optional Practical Training
  2. Individuals in TN status (pursuant to the NAFTA Treaty)
  3. Individuals who are nearing the end of their L-1B status
  4. Individuals who are nearing their first L-1B extension.  Based on the increased scrutiny by USCIS of the L-1B classification (i.e. increased RFEs and denials), switching to H-1B status rather than filing for an L-1B extension may be a better option depending on the particular case
  5. Individuals who are in their 4th or 5th year in L-1A status and do not qualify as multinational managers for the permanent residency process
  6. Candidates coming from abroad or not currently work authorized
  7. Candidates seeking to transfer an H-1B from a cap-exempt to a cap-subject employer (such as a university to a for-profit company)
  8. Individuals with H-4 EADs (given that H-4 EADs are also slated for elimination, also set on the regulatory agenda for February 2018

Cases which are NOT subject to the H-1B cap

  1. H-1B amendments (filing to change a term or condition of employment for an employee who already holds H-1B status)
  2. H-1B extensions (filing to extend the stay of an employee who already holds H-1B status)
  3. H-1B transfers (filing to transfer an H-1B from Employer A to Employer B)
  4. H-1B petitions for someone who has held an H-1B in the past and has not exhausted the full six years of H-1B time
  5. H-1B petitions filed by cap-exempt employers, such as universities or non-profit research institutions

POSSIBLE CHANGE TO LOTTERY PROCESS:       Employers would be required to pre-register for the H-1B cap lottery, and would submit cap petitions only after they have won cap numbers.

A regulation titled “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations” is slated for February 2018.  We anticipate that this may result in the following:

  1. Establish an electronic registration program.  DHS states this is being considered because the demand for H-1B specialty occupation workers by U.S. companies has often exceeded the numerical limitation, and the “rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions.”
  2. Modify the selection process, per Executive Order 13788, Buy American and Hire American, which states that H-1B reforms shall be made to ensure that H-1B visas are awarded to the most-skilled or highest paid beneficiaries.

What the Registration Process Might Entail

DHS published a similar proposed rule in 2011 that was never finalized.   Again, the idea was a more efficient and cost-effective process for employers.  The proposal at that time involved requiring companies seeking to file an H-1B petition to first electronically register with DHS with very basic, non-substantive information about the employer and prospective H-1B employee.   USCIS indicated this would take approximately 30 minutes.  Then, before the petition filing period began on April 1, USCIS would select the number of registrations predicted to exhaust all available visas.  Employers would file H-1B petitions only for the selected registrations.

The registration system would therefore save employers the effort and expense of filing H-1B petitions and the underlying Labor Condition Applications for workers who would be unable to obtain visas under the statutory cap.  However, the program did not proceed amidst concerns that the process would simply add a layer to the already complex H-B filing procedures, and create a flood of unnecessary or unqualified registrations that would ultimately be abandoned or denied.  That is, in order to secure an H-1B slot and maintain a competitive advantage in the job market, employers would register anyone who might potentially be offered a job, even those who are in the very early recruitment and/or interview stages.  Also, a single individual may interview with several employers, all of whom submit registrations for the employee, when the employee would only take one job.  The other registrations would be abandoned, resulting in lost visa numbers, unless the number goes back in the pool and the slot is given to someone on a wait list.

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