H-1B Filing Season for Fiscal Year 2020 Is Here

Now is the time for employers to assess their FY2020 H-1B needs and start preparing their petitions for submission on April 1. It is very likely that the cap for H-1B petitions will be reached in early April of this year, so employers should submit these petitions as early as possible. And, the degree of scrutiny applied to H-1B petitions in 2017 and 2018 was far higher than in previous years, so petitioners should be prepared to receive a higher number of requests for evidence for their cap-subject H-1B petitions.

On April 1, 2019, US Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions for fiscal year 2020 with an employment start date of October 1, 2019. We recommend that employers send all H-1B petitions subject to the FY2020 cap to USCIS for delivery on April 1. Any cap-subject H-1B petition that USCIS receives before April 1 will be rejected.

USCIS has a quota of 65,000 cap-subject H-1B visas each fiscal year. (By law, 6,800 of those visas are allocated as H-1B1 visas to nationals of Chile and Singapore.) A separate allotment of 20,000 H-1B visas is available to foreign nationals who hold a master's or other advanced degree from a US institution of higher education. As indicated in the below table, in recent years the cap was reached within the first five business days of April. Although it is not possible to predict with complete accuracy what the demand for H-1B visas will be this year, a strong economy and an increasing demand for qualified workers, especially in the financial services and information technology industries, strongly suggest that demand will be high and that the cap will be reached very quickly again, likely within the initial filing window. Therefore employers should submit their cap-subject H-1B petitions as early as possible.

Only petitions filed on behalf of foreign nationals who have not previously been counted against the H-1B cap in the last six years are subject to this year's H-1B cap. H-1B petitions for foreign nationals employed by institutions of higher education, nonprofit research organizations, or governmental research organizations are not subject to the cap.

Preregistration Program

On December 3, 2018, USCIS published a proposed rule that would institute a new, internet-based preregistration system for petitioners seeking to file H-1B petitions subject to the cap. On January 30, USCIS announced publication of its final rule on preregistration, and confirmed that the electronic registration requirement will not go into effect for the upcoming FY2020 cap season.

Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file H-1B cap-subject petitions.

Reverse Selection Order

In the same proposed rule published on December 3, 2018, USCIS also proposed reversing the order by which it selects H-1B petitions under the H-1B regular cap and the advanced degree exemption. On January 30, USCIS announced publication of its final rule on this and confirmed that the reverse selection order will apply to petitions filed for the FY2020 H-1B cap season.

When USCIS receives more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted toward the number of petitions projected as needed to reach the cap.

In previous years, USCIS would first conduct the US master’s degree lottery (20,000 petitions) and then add any remaining US master’s degree beneficiaries into the “regular” lottery (65,000 petitions).

Effective April 1, USCIS will first conduct the “regular” lottery for 65,000 visas with the master’s degree beneficiaries included. USCIS will then put the remaining US master’s degree beneficiaries into a lottery for the separate 20,000 US master’s degree allocation.

Changing the order in which USCIS counts these allocations will likely increase the number of petitions selected for beneficiaries with master’s or higher degrees from US institutions of higher education.

How This Affects You

Employers should review the immigration status of their current and potential foreign national employees and identify any individuals for whom H-1B status might be beneficial. These individuals include the following:

• Recent college and university graduates employed in F-1 optional training status
• Candidates abroad who are subject to the annual H-1B cap
• Candidates in another nonimmigrant status (e.g., L-1B) who are approaching the maximum limits of their status and would benefit from a change of status to H-1B
• Candidates currently employed pursuant to an H-4 employment authorization document (EAD) who wish to become independent of the spouse’s H-1B status or who are concerned about continuity of the H-4 EAD program
• Candidates in another nonimmigrant status who work for a different employer and would require an H-1B visa to change jobs
• Candidates in TN, E, or H-1B1 status for whom an employer is considering pursuing permanent residence

If the limit on H-1B visa numbers is reached on any one of the first five business days of the cap season, all petitions received by USCIS between Monday, April 1, and the close of business on Friday, April 5, will still be accepted, but their selection for adjudication will be subject to USCIS conducting a lottery among them. A lottery has been held for the last three years, and it is almost certain that a lottery will be held again this year.

The degree of scrutiny applied to H-1B petitions in 2018 (and 2017 before that) was far higher than in previous years, with a dramatic increase in the issuance of requests for evidence (RFEs) for, and denials of, such petitions. This trend is likely to continue this year, and petitioners should be prepared for an increasingly narrow interpretation of the rules relating to eligibility for H-1B status. The following are areas of concern for the USCIS, and may result in the issuance of an RFE or possibly a denial, if not addressed to the satisfaction of USCIS:

• The use of a Level I wage in the supporting Labor Condition Application (LCA)
• The use of a “Computer Occupations, All Other” Standard Occupational Classification (SOC) occupation title in the supporting LCA
• Proposed employment of the beneficiary as a computer systems analyst or market research analyst
• Proposed employment in any other position that does not appear to be a specialty occupation or where the beneficiary’s education does not appear to be connected to the position to be held

Contacts

If you have any questions or would like more information on the issues discussed in this Immigration Alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Eleanor Pelta
Eric S. Bord
Shannon A. Donnelly