15:33 11 January in News Updates

The filing window for H-1B petitions seeking a FY2020 (10/1/19 to 9/30/20) cap or quota number will open on Monday, April 1, 2019.   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, 2019.

What changes have been proposed this year?

H-1B Cap Registration.  USCIS recently proposed a rule that would change the way H-1B “cap” petitions are filed and selected.  Currently, a fully completed petition must be filed for consideration in the random selection process that takes place in April of each year.  USCIS is proposing to change the process so that employers would register electronically for consideration in the lottery and only those that have been registered and selected in lottery would submit a fully prepared petition.  Details have not been finalized and the more likely scenario is that USCIS will wait until 2020 to implement the new system given the short timeframe from the time the rule will be finalized and the opening of the filing window.

What can be expected?

H-1B Lottery Selection Process.  What is clear is that USCIS will change the way H-1Bs will be selected to provide an advantage to U.S. Advanced Degree professionals (applicants who hold a master’s or higher degree from a U.S. university) furthering the Administration’s agenda of ensuring that H-1Bs are awarded to the highest-paid and most-skilled beneficiaries.  In the past, U.S. Advanced Degree professionals were first considered for the lottery of 20,000 H-1Bs under the Master’s Cap exemption.  Any who were not selected were then considered in the general lottery of 58,200.  This year, the process will be reversed, providing these individuals with a greater opportunity for selection.

Premium Processing.   Premium processing is currently suspended for most H-1B petitions.  USCIS has advised premium processing may be reinstated for all H-1Bs on 2/19/2019, but this is uncertain.  If it is reinstated, we anticipate that USCIS will again suspend premium processing for cap subject filings from April 1 for some period of time.   

How is LAC preparing H-1Bs in light of the above?

The implementation of the registration process is uncertain at this time.  Also, the extent and nature of the information which may be required in order to submit a registration, and for the registration to be selected, is unknown.  To ensure petitions will be prepared in time for submission under the regular process on April 1, we are proceeding with full preparation of cap-subject H-1B petitions as usual.  If the process changes prior to April 1, we will use the information provided by the employer and employee to prepare the registration application.    Legal fees will be incurred for work performed until the date the full petition is completed and ready for submission to USCIS, or until the date of a change in process, whichever comes first.   If the registration process involves additional steps, a commensurate legal fee may apply.  We will advise clients of any changes in process and any related fees as soon as the information is available.

When should H-1B petitions be initiated with LAC?

H-1B petitions should be initiated as soon as possible to ensure a smooth process and minimize the anxiety on employers and employees.  A rush fee will apply incrementally for H-1Bs initiated after February 15th.

What does the lottery process look like?

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 FY2020 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 1 and Friday, April 5. 

What are the H-1B Quota limitations?

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

Which individuals may need cap-subject H-1B sponsorship?

  • F-1 students currently working pursuant to Optional Practical Training (OPT)
  • Individuals in TN status (pursuant to the NAFTA Treaty)
  • Individuals who are nearing the end of their L-1B status
  • 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
  • Individuals who are in their 4th or 5th year in L-1A status and are subject to quota backlogs preventing them from completing the permanent residency process
  • Candidates coming from abroad or not currently work authorized
  • 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)
  • Individuals with H-4 EADs (given that H-4 EADs are also slated for elimination) 

What types of cases are NOT subject to the H-1B cap?

  • H-1B amendments (filing to change a term or condition of employment for an employee who already holds H-1B status)
  • H-1B extensions (filing to extend the stay of an employee who already holds H-1B status)
  • H-1B transfers (filing to transfer an H-1B from Employer A to Employer B)
  • 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
  • H-1B petitions filed by cap-exempt employers, such as universities or non-profit research institutions

Should you have any questions or concerns regarding the above, please contact your LAC attorney

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