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UNITED STATES – USCIS FY 2020 H-1B Cap and Premium Processing [UPDATED]

[UPDATE]

*Phase one commenced on 1 April 2019, allowing H-1B lottery petitioners applying for a change-of-visa status to file a request for premium processing concurrently with their H-1B petition. USCIS began processing those requests on May 20, 2019.

*On June 10, 2019, USCIS announced the commencement of phase two, allowing premium processing for all other FY 2020 H-1B cap-subject petitions, including those petitions requesting consular notification.

On 19 March 2019, US Citizenship and Immigration Services (USCIS) announced a two-phase approach to premium processing for H-1B cap petitions when the FY 2020 filing period begins on 1 April 2019.

The first phase will include FY 2020 H-1B cap petitions requesting a change of status, and the second phase will include all other FY 2020 H-1B cap petitions.

Currently, premium processing is available for all non-cap subject H-1B petitions, including extension of stay and change of employer requests.

Background

Premium processing

The premium processing service permits employers to request USCIS to adjudicate H-1B petitions within 15 calendar days by submitting Form I-907 (Request for Premium Processing Service) and an additional filing fee of USD 1410. If USCIS does not take certain adjudicative action within the 15 calendar day processing time, USCIS refunds the petitioner’s premium processing service fee and continues with expedited processing of the petition.

Premium processing for FY 2019 H-1B cap petitions was suspended effective 2 April 2018, and the suspension was later extended and expanded. On 28 January 2019, USCIS resumed premium processing for all fiscal year (FY) 2019 H-1B cap-subject petitions, and on 19 February 2019 for pending H-1B petition filed on or before 21 December 2019. On 12 March 2019, USCIS resumed premium processing for all H-1B petitions.

H-1B Cap selection process

In January, the Department of Homeland Security announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, which will be in effect for the FY 2020 cap season. This simple change increases the chances that more of these visas will be granted to those with an advanced degree from a US institution of higher education.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Congress has set a cap of 65,000 H-1B visas per fiscal year. An advanced degree exemption from the H-1B cap is available for 20,000 beneficiaries who have earned a US master’s degree or higher from a US institution of higher education. The agency will monitor the number of petitions received and notify the public when the H-1B numerical allocations have been met.

Action Items

  • Employers who may be affected are encouraged to contact their immigration specialist for case-specific advice.

This alert was prepared with information provided by Maggio Kattar, Ogletree Deakins and Gibney.

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 © 2019 Peregrine Immigration Management Ltd.