USCIS Completes the H-1B Cap Random Selection Process for FY2020

USCIS has confirmed that they have received a sufficient number of petitions projected as needed to reach the congressionally-mandated H-1B Cap (including the U.S. advanced degree exemption or “Master’s” cap) for Fiscal Year 2020. USCIS previously announced on April 5 that it had received enough petitions to reach the congressionally mandated H-1B regular cap of 65,000.

USCIS received 201,011 H-1B petitions during the filing period, which began on April 1, 2019.

USCIS will begin to reject and return filing fees for all unselected cap-subject petitions (with the exception of fees for cases rejected as prohibited multiple filings).

USCIS Reaches FY 2020 H-1B Regular Cap

USCIS has confirmed that they have received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa “regular” or “Bachelor’s” cap for Fiscal Year 2020.

USCIS will next determine if they have also received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, the “Master’s” cap.

As a reminder, the agency recently implemented a new rule amending the regulations governing the H-1B cap. Under the new rule, USCIS runs petitions through the lottery process by first selecting all individuals through the regular cap of 65,000 visas and then selecting the projected number of petitions needed to reach the advanced degree exemption through the second lottery among only U.S. advanced degree holders who were not selected in the regular cap lottery. The agency has stated that this new order in which the lottery is run will likely increase the probability of selection for H-1B advanced degree beneficiaries.

Once both caps have been met, USCIS will reject and return filing fees for all unselected cap-subject petitions (with the exception of fees for cases rejected as prohibited multiple filings).

USCIS Releases Guidance on Premium Processing for FY2020 H-1B Cap Petitions

Today USCIS officially announced that Premium Processing will be available for this year’s H-1B cap petitions. However, USCIS will be implementing premium processing in a two-phased approach, depending on whether the petition is being filed with a request for Change of Status or whether the petition is being filed for Consular Notification.

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USCIS To Resume Premium Processing Service for H-1B Petitions Filed on or before 12/21/2018

The United States Citizenship and Immigration Service (USCIS) announced that it will resume premium processing service on Tuesday, February 19, 2019 for all H-1B petitions filed on or before December 21, 2018.

As a reminder, USCIS previously announced that premium processing would resume for FY2019 cap-subject petitions beginning on January 28, 2019. Today’s announcement further expands the use of premium processing service to all other H-1B petition types filed on or before December 21, 2018.

USCIS notes that the premium processing requests must be sent to the service center currently handling the pending H-1B petition. It also states that the petitioners who have received requests for evidence (RFEs) should include the RFE response with their premium processing upgrade requests.

The announcement confirms that the previously-implemented suspension of premium processing service will remain in effect for H-1B petitions that were filed on or after December 22, 2018 until agency workloads permit premium processing service to resume for these cases.

D&S will continue to monitor the H-1B premium processing suspension and provide updates as they become available.

USCIS Publishes NPRM Outlining H-1B Lottery Pre-Registration Process

WHAT’S HAPPENING

Today, the United States Citizenship and Immigration Service (USCIS) published a Notice of Proposed Rulemaking (NPRM) titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens” that will implement an electronic pre-registration process for H-1B cap petitions wherein a full H-1B petition would be submitted only after acceptance in the pre-registration lottery. The change stems from directives in the April 2017 “Buy American, Hire American” executive order, which call for reforms to the H-1B visa program to ensure that H-1Bs go to the “most-skilled” and “highest-paid” foreign workers. The rule is aims streamline the H-1B lottery process and increase the probability of selection for H-1B beneficiaries who possess a U.S. master’s or higher degree.

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USCIS Announces that Data Entry for all FY2019 H-1B Cap Cases is Complete

USCIS has confirmed that data entry for all fiscal year 2019 H-1B cap-subject petitions selected in the computer-generated random selection process ("the lottery") has been completed. The Agency will now begin returning all H-1B cap-subject petitions that were not selected in the lottery. 

USCIS has indicated that, due to the high volume of H-1B filings, the Agency cannot provide a definite time frame for returning unselected petitions but that they will issue an announcement once all the unselected petitions have been returned. 

USCIS Announces Temporary Suspension of Premium Processing Service for FY2019 H-1B Cap Subject Petitions

Today, March 20, 2018, USCIS announced that it will be suspending premium processing service for H-1B cap-subject petitions for fiscal year 2019.  The temporary suspension is expected to last until September 10, 2018 and applies only to FY2019 cap-subject petitions, meaning those that are being filed as cap-exempt, including requests for change of H-1B employer, extension of H-1B status, and H-1B petition amendments, for example, will continue to be eligible for premium processing service. 

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Reminders to Students and Employers as H-1B Cap Effective Date Approaches on October 1

As October 1st is fast-approaching, individuals with H-1B petitions that were selected in this year’s H-1B cap and employers of H-1B visa holders should remain aware of some important facts:

CAP-GAP EXTENSIONS END ON SEPTEMBER 30th - For those whose H-1B is still pending and who are relying on the automatic cap-gap for F-1 students, keep in mind that that your cap-gap employment authorization ends on September 30th, even if the H-1B remains pending after this date. Therefore, employees whose H-1B visas are not approved by October 1st will have to stop working and be removed from payroll. Because of this, we recommend considering upgrading to premium processing as soon as possible in order to avoid this consequence or, at the very least, minimize the amount of time you or your employee will be unable to work.

VALID H-1B VISA STAMP REQUIRED FOR REENTRY TO U.S. - While an H-1B employee is not required to have a valid H-1B visa in his or her passport for purposes of employment, they must have a valid H-1B visa stamp for entry or reentry to the U.S. Therefore, following approval of the H-1B petition, an H-1B employee should be mindful of the fact that they will be required to apply for an H-1B visa stamp prior to returning to the U.S. the next time they travel internationally, absent certain limited exceptions, including trips of under 30 days to Canada, Mexico, or adjacent islands (note individuals should vet any such travel with immigration counsel prior to making travel plans to ensure an exception applies in their case).  

I-9 REVERIFICATION MAY BE REQUIRED - Employers should also keep in mind that for current employees with an approved H-1B “Change of Status” petition, whose current status will expire on October 1, including all F-1 students working pursuant to cap-gap employment authorization, the individual’s employment authorization will need to re-verified on Form I-9.

ALWAYS ADVISE IMMIGRATION ATTORNEY OF ANY CHANGES TO H-1B EMPLOYMENT - Finally, employers and employees should be aware that certain changes to the terms of an H-1B visa holder’s employment could impact their continued eligibility for H-1B status and/or could necessitate the filing of an H-1B amendment.  Employers are therefore encouraged to speak to immigration counsel prior to making any changes to the terms of an H-1B visa holder’s employment to ensure compliance with these requirements.