Time to Start Preparing H-1B Cap Petitions for FY 2020

Published on January 3, 2019

The Immigration Group at Ryan Swanson advises employers to start early preparation of H-1B petitions subject to the annual quota for the 2020 fiscal year.  Based on prior years, it is anticipated that USCIS will start accepting H-1B cap-subject petitions on Monday, April 1, 2019, for at least five business days, until April 5, 2019. Although USCIS may impose a new H-1B lottery pre-registration process this year (please see our previous post on the potential changes to the H-1B cap lottery process here), it is still highly uncertain whether the agency will be able to implement this new process in time for this year’s H-1B cap lottery.  Therefore, we recommend that employers prepare H-1B petitions well in advance of the filing deadline to ensure that they are able to file H-1B cap petitions for all employees who might be eligible.

As background, Congress has imposed an annual limit of 65,000 H-1B visas available to individuals with a Bachelor’s degree (or equivalent), and an additional 20,000 H-1B visas available to individuals who have a U.S. Master’s degree. Last year, USCIS received 190,098 H-1B petitions in the first week, and fewer than 50% of the H-1B petitions were selected in the lottery. Individuals with a U.S. Master’s degree will likely be favored in the lottery selection process this year, as the 20,000 H-1B visas for individuals who have a U.S. Master’s degree will be selected prior to the 65,000 H-1B visas under the Regular Cap.

We recommend that employers initiate any H-1B petitions subject to the cap well in advance the April 1 filing deadline to ensure timely preparation and filing of the petition, in light of any potential changes to the H-1B cap lottery process. Current filing fees an H-1B petition include a $460 filing fee, $500 anti-fraud fee, and an ACWIA Training Fee of $1,500 (if the employer has 25 or more employees), or $750 (if the employer has less than 25 employees). Premium processing continues to be suspended for all cap-subject H-1B petitions, unless the employer is requesting a continuation of previously approved employment without change, until February 19, 2019. Though premium processing is anticipated to resume after February 19, 2019, it is possible that USCIS will prolong the suspension. If premium processing resumes, employers may elect to file their H-1B cap-subject petitions with premium processing for an additional $1,410 fee.

This past year, the Department of Homeland Security proposed certain changes to the H-1B program and other work visa programs under the President’s “Buy American, Hire American” Executive Order. Potential changes may include termination of employment authorization (EADs) for spouses of H-1B visa holders who hold H-4 status, as well as the possible implementation of an H-1B cap pre-registration process.  We have seen a recent uptick in the issuance of Requests for Evidence (RFEs) issued by USCIS in connection with H-1B Petitions, especially on the issue of whether the position qualifies as a specialty occupation, and whether the employer has sufficient specialty work available for the full three-year requested H-1B validity period. Regardless, the immigration attorneys at Ryan Swanson have secured approval of many H-1B petitions despite the higher level of scrutiny being applied by USCIS, and we are available to work closely with employers to navigate these challenges and prepare approvable H-1B petitions in light of the current immigration climate.

Please contact the immigration attorneys at Ryan Swanson as soon as possible if your company is considering filing any H-1B cap petitions this year.

Amy Royalty can be reached at [email protected].
Jen Chen can be reached at [email protected].
Cody Nunn can be reached at [email protected].
Marsha Mavunkel can be reached at [email protected].
Joel Paget can be reached at [email protected].
Janet Cheetham can be reached at [email protected].