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Another H-1B Cap Season and More Changes Another H-1B Cap Season and More Changes

Another H-1B Cap Season and More Changes

Beginning April 1, 2019, USCIS will begin accepting petitions for H-1B temporary workers for Fiscal Year 2020, and several important changes impacting this year’s lottery are described below. If approved, H-1B status will become effective no earlier than October 1, 2019. There are only 65,000 new H-1B visas available each fiscal year (“Regular cap”) and an additional 20,000 reserved for foreign nationals with a U.S. master's degree or higher (“Master’s cap”). The H-1B classification is widely utilized by U.S. companies on behalf of foreign engineers, physicians, professors, executives, managers and other professionals and is often the only available option for temporary employment in the U.S. Employers should immediately identify any current or prospective employees who will need new H-1B visas to work in the U.S. over the course of the next year.

Important Changes to H-1B Cap Lottery: Each year, USCIS consistently receives H-1B cap-subject petitions well in excess of the numerical quota set by Congress. As a result, a computer-generated "lottery" is used to select petitions. Consistent with President Trump's "Buy American Hire American" Executive Order to award H-1B status to the highest-skilled beneficiaries, USCIS quickly finalized a rule effective April 1, 2019 changing how H-1B cap petitions will be selected. Historically, USCIS has conducted the lottery for the 20,000 Master’s cap petitions first and then the lottery for the 65,000 Regular cap has been held thereafter (which included those petitions not selected in the Master’s cap).

Under the new finalized rule, USCIS will be conducting the Regular cap first from all filed petitions (Regular and Master’s). Then, the lottery for the Master’s cap will be held for those qualifying petitions not selected in the Regular cap. By reversing the order of the selection process and conducting the Regular cap lottery first, the intention is to increase the U.S. Master's Cap petitions that are selected under the H-1B numerical allocation. In fact, USCIS projects that there will be an increase of up to 16% (5,340 workers) of H-1B beneficiaries with a Master's degree or higher from a U.S. institution of higher education selected in the lottery under the revised rule. With the Master’s cap only applicable to graduates of U.S. institutions, the rule change is leaving highly-educated foreign nationals with advance degrees from outside the U.S. at a distinct disadvantage. Whether there will be litigation on this finalized rule remains to be seen.

Additional Changes Impacting FY2020: In addition to this significant change in the lottery selection described above, USCIS is expected to once again suspend Premium Processing of H-1B cap subject petitions, especially considering some FY2019 H-1B cap subject petitions from last year remain pending. The suspension of premium processing is intended to allow USCIS additional time for data entry and processing the high volume of cap petitions received each year.

USCIS has also just announced it will be releasing a new Form I-539 for family members of H-1B workers seeking a change or extension of status. The new form will be released and immediately required effective March 11 (mere weeks ahead of the April 1 deadline for H-1B cap subject petitions). The new form is expected to require separate addendums and signature pages for each family member, as well as a new $85 biometrics fee collection and related biometrics appointment for such family members.

Future Changes Requiring Electronic Registration: While the final rule described above is effective April 1, 2019 with respect to the lottery, the electronic registration portion of the final rule is temporarily suspended. Under the electronic registration part of the rule, which is expected to take effect for next year’s H-1B cap season, employers will not be able to file an H-1B cap petition unless it is first registered and selected by USCIS. Employers will be required to submit a separate registration for each beneficiary and substitution of beneficiaries will not be permitted. Once a cap-subject petition is selected, the employer then will have 60 days to file the H-1B petition. USCIS will retain some unselected registrations for the remainder of the fiscal year should it determine additional registrants are needed. Again, the registration requirement is suspended through the FY 2020 cap season to allow for user testing on the new registration portal. There were a number of concerns raised during the public comment period on the proposed rule, including the increased likelihood of frivolous registrations that are less typical in the existing system given the level of data collection required.

Given the numerous changes impacting this year’s lottery system and the quickly approaching April 1 deadline, employers are strongly encouraged to contact us to discuss your H-1B cap-subject filing needs.

To discuss the H-1B visa program or any other immigration-related need, please contact Jenifer M. Brown, Christl P. Glier or any member of Ice Miller's Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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