On April 1, 2019, U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B petitions subject to the annual quota for fiscal year 2020 (FY 2020). With the filing window quickly approaching, employers now have only a limited amount of time to identify and prepare petitions for employees who require new H-1B visas to work in the United States. H-1B visas have attracted increasing scrutiny in the wake of President Trump’s “Buy American and Hire American” executive order, which makes it all the more important that employers have sufficient time to thoroughly prepare their H-1B petitions before filing.
H-1B Visa Synopsis
The H-1B visa program permits U.S. employers to temporarily hire foreign nationals in “specialty occupations” that require a bachelor’s degree or higher (or its foreign equivalent) in a specific field. Specialty occupations are those that require the understanding and use of a highly specialized body of knowledge, such as that of an engineer, economist, or scientist.
There are only a limited number of new H-1B visas available each fiscal year (October 1 – September 30). The current annual limit, or “cap,” is 65,000 visas but there are also an additional 20,000 visas available to H-1B applicants who possess advanced degrees from U.S. academic institutions. H-1B visas may be requested only six months prior to the requested employment start date. That means that for an October 1, 2020 start date, employers may file as early as April 1, 2019.
The H-1B Lottery
USCIS often receives significantly more H-1B cap petitions than there are visas available. When that happens, USCIS conducts a random, computer-generated lottery to select the petitions that will ultimately be adjudicated by USCIS. This year, USCIS announced that it will be reversing its normal process and will now conduct the regular H-1B cap lottery before it conducts the advanced degree lottery. USCIS believes that reversing the order of the lotteries will increase the total number of petitions selected for beneficiaries with a master’s or higher degree from a U.S. institution by approximately 16 percent, or 5,340 workers.
Once USCIS has selected a sufficient number of petitions to fill the H-1B visa quota, it will return all unselected petitions (with the government filing fees) to the employers who filed them. USCIS will not accept any additional H-1B cap petitions until filing for the next fiscal year begins.
Prepare for the H-1B Cap
Timing over the next few weeks is critical for employers that wish to file cap-subject H-1B petitions. Employers must request a certified Labor Condition Application (LCA) for each H-1B petition they seek to fill from the U.S. Department of Labor (DOL). It can take DOL up to 10 days to process the certifications. Employers should keep this processing time in mind to ensure timely approval of an LCA.
It is also worth noting that it is the employer’s responsibility to establish that both the position sought and the foreign national candidate meet the requirements for the H-1B visa. The following is a list of some of the key elements the employer must prove to establish eligibility for the H-1B visa:
- The employer must prove that the position sought meets the definition of a specialty occupation.
- The employer must prove that the candidate is qualified to perform a specialty occupation.
- The employer must prove that it will maintain a valid employee-employer relationship with the candidate for the duration of the employment. This is especially important when the candidate will work at an off-site location.
- If the candidate will be working off-site, the employer must provide documentation showing that the candidate will be engaged in specific, non-speculative work assignments in a specialty occupation for the duration of his or her employment.
- If the candidate will be working off-site, the employer must provide a detailed itinerary that notes the dates and locations of the services to be provided by the candidate.
Filing H-1B Petitions
Because of the limited number of H-1B visas available and the high demand, employers generally file their cap-subject petitions on the first day of filing to increase their chances of securing an H-1B visa. For FY 2020, that means employers should be prepared to mail their H-1B cap cases on March 29, 2019, for delivery to USCIS on April 1, 2019.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments related to the FY 2020 H-1B cap and selection lottery and will post updates on the Immigration blog as additional information becomes available.