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UNITED STATES – Preparing for the Fiscal Year 2020 Cap-Subject H-1B Filing Period

On 1 April 2019, US Citizenship and Immigration Services (USCIS) will start to accept H-1B petitions from cap-subject employers for skilled foreign workers starting work in fiscal year 2020 (from 1 October 2019).

Employers should contact their immigration specialist as soon as possible to prepare any H-1B petitions they intend to file.

Why is this Important?

USCIS may only approve 65,000 new H-1B petitions per fiscal year (the "cap") with an additional 20,000 available each fiscal year for individuals with advanced degrees from US academic institutions.

If USCIS receives more than enough petitions to meet the quotas during the first five business days of the filing season (i.e., 1 April to 5 April 2019), it stops accepting petitions and conducts a computerized lottery to choose cases for processing. This initial lottery is limited to qualifying advanced degree holders whose petitions, if not selected, will be rolled into a second lottery for the regular H-1B cap. Petitions not selected in the lottery will be returned with the filing fee, and no new cap-subject H-1B petitions will be accepted until the beginning of the next filing period (April 2020) for the following fiscal year (from October 2020).

For the past six years, the cap has been met immediately and a lottery has been required, meaning that no petitions received after the first week of April were accepted. The same situation is expected this year.

Timing of H-1B Petitions

  • Cap-subject employers should aim to submit their H-1B petitions on 29 March 2019 for delivery to USCIS on 1 April 2019.
  • To file an H-1B visa petition, an employer must first obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL). Currently, the DOL is taking seven calendar days to certify an LCA. However, regulations permit the DOL to take up to ten business days.
  • In addition, if a company has not filed an LCA since 2008, it is likely not registered with the DOL, and will first need to be registered through a process that takes an additional three business days.
  • In previous years, the high usage rate of the online LCA system towards the end of March caused the website server to shut down or function extremely slowly.
  • Moreover, a prospective H-1B employee whose degree is not from the US will need to have their degree equivalency attested by an accredited credential evaluation company, which may take more than 24 hours.
  • Workers benefiting from approved petitions may start work on 1 October of the same year.

What is the H-1B Visa?

H-1B visas are the most common temporary work permits available to foreign national professionals in the United States. They are obtained routinely by US businesses that require foreign professional workers possessing at least a bachelor's degree or its equivalent in a particular field.

An H-1B employer must also attest to paying the same salary and benefits packages normally offered to US workers in similar positions and to observing the H-1B program's specific public notice and recordkeeping requirements.

Proposed New H-1B Electronic Registration System

On 30 November 2018, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with US Citizenship and Immigration Services (USCIS) during a designated registration period. Under the proposed rule, USCIS would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption, possibly increasing the number of beneficiaries with a master’s or higher degree from a US institution of higher education to be selected for an H-1B cap number.

This pre-registration system would mean that employers would no longer have to file a complete H-1B petition only to see it rejected if it is not selected in the cap lottery. Rather, the lottery would be run beforehand, based on the pre-registrations, and so employers would only need to file petitions for beneficiaries that have already been selected in the electronic lottery.

However, it does not appear that the new pre-registration system will likely be ready for next cap season. The DHS announcement mentions that they are requesting as part of the proposed rule that they be allowed to delay implementation if necessary while they get the technical aspects of the new registration system sorted out (which is very likely to occur).

Action Items

  • Employers should contact their immigration specialist to start planning their H-1B filings as soon as possible, to ensure they are accepted by USCIS for the lottery.

This alert was prepared with information provided by Klug Law Firm and Newland Chase.

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2021 Peregrine Immigration Management Ltd.