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.

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.

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.