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 Are You Ready for H-1B Season?

Are You Ready for H-1B Season?

On April 1, 2019, U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new cap-subject H-1B petitions, for a start date of October 1, 2019.  Companies seeking new H-1B visas for foreign workers and foreign national student interns/employees should start preparing now to submit petitions in the annual H-1B visa lottery.  Early preparation this year will be especially important, because USCIS recently issued a proposal to drastically revamp and alter the H-1B submission process.

Overview of H-1B

H-1B visas are one of the most common types of non-immigrant programs used by companies in the United States.  This visa category is available for any role that is designated as a “specialty occupation,” which is a role that requires “theoretical and practical application of a body of highly specialized knowledge” and attainment of a bachelor’s degree in a specific specialty related to the position.  In addition, the employee beneficiary must also hold a bachelor’s degree or higher in the specific specialty.

The annual cap on new H-1B visas is set at 65,000, with an additional 20,000 visas exclusively available to individuals with advanced degrees from an accredited U.S. educational institution.  Some companies and institutions are not subject to the annual cap of H-1B numbers, but the majority of for-profit companies must use the cap-subject H-1B system.  Companies of any size and any profitability are eligible to apply, although the employer must agree to pay a salary that is at or above a minimum prevailing wage for the occupation and location of employment.

Application System through 2018

Under the system that has been in place for several years, requests for new H-1B visas can be submitted to USCIS beginning on the first business day of April.  USCIS will accept filings for the first five business days of April.  At the end of the initial five-day filing period, USCIS will determine if they have received a sufficient number of applications for the new fiscal year; if so, USCIS will stop acceptance of new applications.  If there are still sufficient cap-subject visas available, the filing window will remain open for a longer period of time.

For the past several years, USCIS has received far more H-1B petitions in the first five business days of April than the number of H-1B visas available.  When filings exceed supply, USCIS will run a blind lottery to determine the cases that will be selected for review and adjudication.  USCIS first runs the lottery for the 20,000 U.S. advanced degree H-1B visas, followed by the lottery for the 65,000 regular H-1B visas.  Petitions that are selected in the lottery will be accepted for processing, and those that are not selected will have the petition and full filing fees returned.

Under our current system, employers must submit a fully developed application with all required forms, exhibits, and filing fees, and it can take several weeks for non-selected petitions to be returned.  The flood of 85,000 new applications each fiscal year also burdens USCIS, causing longer processing times and overall processing delays for other types of applications.  Since 2017, USCIS has temporarily suspended expedited “premium processing” on H-1B cap-subject petitions in an attempt to better manage the flood of new applications.

New Proposed Rule

In December 2018, USCIS announced a new proposed rule to change the way that cap-subject H-1B petitions are submitted by employers and accepted by USCIS for filing, in an attempt to both lessen the burden on petitioners and improve the intake of new cap-subject H-1B petitions.

The new proposed rule would create a system where petitioners register with an Internet-Based electronic registration system and submit a short filing request for each cap-subject H-1B petition.  The employer and employee registrations would contain basic information regarding the employer, employee, attorney involved in the case (if any), and qualification for the 20,000 U.S. advanced degree H-1B visas.  The electronic registration process will begin 14 calendar days before the first business day of April and will require no payment of registration or filing fees. 

If USCIS receives more registrations than H-1B visas available at the end of the 14-day filing window, a lottery will be run from the registered applicants.  The new proposed rule will also change the order of the blind lottery systems, mandating that the lottery for the 65,000 regular H-1B visas is run first, followed by the lottery for the 20,000 U.S. advanced degree holders.  By changing the order of the lotteries, USCIS estimates that an additional 16% of cap-subject H-1B visas will be allocated to U.S. advanced degree holders.  Non-selected cases will remain in the system and could be eligible for a future visa number in the same fiscal year based on denials or withdrawals from lottery selected cases.

Selected applicants will be given a specific window in which the H-1B application will be submitted.  USCIS anticipates that each filing window will last for 60 days and filing windows will be staggered to control the number of cap-subject applications submitted at the same time.  Employers will not be able to substitute employees (i.e., if Employee A is selected, you cannot substitute for Employee B if Employee A decides to not pursue the H-1B application).  USCIS will be monitoring the system to ensure employers are not abusing the system by filing for cases where there is no ultimate intent of employment.

What Can I Expect for 2019?

While the new rule will improve our current cap-subject H-1B filing system, USCIS has released this rule very close to the new filing window for 2019, and the new registration system may not be in place.   We may therefore have one more year of fully-developed applications submitted between April 1 and April 5, 2019, and the return of non-selected case by USCIS.  While it is too soon to tell, we will keep you updated so you will know what to expect in April.

We are also continuing to see high rates of Requests for Evidence and denials, generally based on whether the position qualifies as a specialty occupation and whether the applicant has a degree and/or experience that is sufficiently related to the role. 

The best way to be prepared for the new cap-subject season is to start working with an attorney in December or January, so you stay on top of ongoing changes to U.S. immigration.

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