USCIS Completes Selection of H-1B Cap Petitions

On May 17, 2019, USCIS announced that it has completed its computer-generated random selection of H-1B cap cases for FY2020.  USCIS has begun issuing receipt notices for all petitions selected in the process, and will begin returning petitions and filing fee checks for all petitions not selected. 

USCIS also announced that it will transfer some of the H-1B cap subject petitions between the Vermont Service Center and the California Service Center to balance the distribution of cases and workload at each service center.  If a petition is transferred, the employer should receive notification in the mail from USCIS and will then be expected to direct all future correspondence to the service center where the petition was transferred.

USCIS began adjudication of H-1B cap subject petitions requesting premium processing on May 20, 2019, and will begin issuing decisions or requests for evidence on these petitions within 15 days of this date (or any date an upgrade to premium processing request is received by the Service after May 20, 2019.) It is expected that this will minimize processing delays,  which caused concern and harm to employers across the United States last year.

If you or your employer was unable to file an H-1B petition this fiscal year, or if your petition is not selected for processing, please keep in mind that there are alternative visa options to explore, including cap exempt H-1B, O-1 and P-1 extraordinary ability, L-1 intracompany transferee, and E-1/E-2 Treaty Trader or Investor visas.  Nationals of Canada and Mexico may also be eligible for TN status in the United States.

Israeli Nationals Eligible for E-2 Investor Visas

Effective May 1, 2019, the U.S. Embassy in Tel Aviv will accept E-2 (treaty investor) applications from Israeli citizens. In addition, USCIS has announced that it will also begin accepting E-2 change of status applications for Israeli nationals who are lawfully present in the United States. Israeli entrepreneurs investing in US companies, as well as, employees coming to work in the US for Israeli companies as executives, managers and essential employees are eligible for E-2 visas.

To qualify, the applicant must be an Israeli national; the applicant or his/her Israeli employer must make a “substantial” investment into a real and operating commercial enterprise in the United States; and the applicant must hold a position in which he will “develop and direct” the business.

E-2 treaty investors and employees, as well as their dependent family members, are eligible for an initial stay valid for two years. Extensions may be granted in increments of up to two years, with no maximum limit so long as the E-2 nonimmigrant maintains an intention to depart the United States when their status expires or is terminated and all of the requirements for the status continue to be met.

DHS Posts Final Rule for H-1B Preregistration Process- Not applicable FY 2020

The US Department of Homeland Security published a final rule that makes sweeping changes to the H-1B lottery process by requiring employers who file H-1B cap subject petitions to preregister. The new rule also prioritizes petitions for beneficiaries who have a Master’s degree or higher. The rule will go into effect April 1st, though the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season.

USCIS Resumes Premium Processing for fiscal year 2019 H-1B Cap Petitions

The US Citizenship and Immigration Services (USCIS) announced that as of Monday, January 28, 2019, its premium processing services will resume for all cap subject cases filed for fiscal year 2019. The premium processing option requires an additional fee and ensures that the government will take action on the petition within 15 business days. Premium processing for H-1B cap petitions was suspended on April 2, 2018, the first day of filing season for the current fiscal year and has remained unavailable since this date. Please note: the resumption only applies to cap subject cases and premium processing remains suspended for all other H-1B petitions subject to the suspension. H-1B extensions filed by an employer requesting a “continuation of previously approved employment without change with the same employer” were never subject to the suspension and remain eligible for premium processing.

DHS Announces Proposed H-1B Lottery Registration Rule

On Monday, December 3, DHS proposed a rule, which would eliminate the current requirement that employers file cap-subject H-1B petitions during the first week of April.  Though this is a proposed rule, it seems they are eager to implement the new system in 2019 as they have limited the comment period on the proposed regulation to 30 days. That said, in order for the rule to go into effect, a final rule would need to be published after the DHS has reviewed the comments submitted by the public. It is possible the rule could be finalized in time to go into effect for the upcoming H-1B lottery. However, technical issues and lawsuits that will likely be filed to block the rule may delay its implementation.  

New Online Registration System

As proposed, the new system will give employers a 150-day period at least two (2) weeks prior to April 1 to submit free online registration forms (one per beneficiary), which will include the following:

1.       The employer’s name, ID number and mailing address;

2.       The employer’s authorized representative’s name, job title and contact information;

3.       The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number;

4.       Whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;

5.       The employer’s attorney or accredited representative, if applicable; and

6.       Any additional basic information requested by the USCIS.

The new online registration system will not require employers to pay a filing fee, file the Labor Condition Application (LCA)  or complete an H-1B petition prior to registration.

Petition Priority

The proposed rule also provides that the lottery for 65,000 H-1Bs will occur prior to the lottery for 20,000 H-1Bs for beneficiaries with advanced degrees from US universities.  The government expects that doing so will increase the number of beneficiaries with advanced degrees in the United States who are selected for H-1B processing.

Notification to Employers and Petition Filings

Upon selection, USCIS will notify employers of which H-1B petitions are chosen in the lotteries. It is expected that employers will be given approximately 2 months to secure LCA certifications and submit H-1B petitions with proper filing fees.   USCIS may have multiple filing periods so not all the H-1B petitions are submitted at the same time and could reopen the registration period if less than 85,000 H-1B petitions are approved.