Time to Get Ready for the H-1B (FY 2020) Cap Season and Start Preparing Those H-1B Petitions

by Protima Daryanani

Now that we are well into the new year, and US Citizenship & Immigration Services (USCIS) has issued clarification about the new H-1B electronic registration (more on that below), it’s time to dive into H-1B cap season. In less than two months—on April 1, 2019—we will be able to file new H-1B petitions for people who have never had H-1Bs, commonly referred to as “cap cases.” (Non-cap H-1B petitions, including extensions of existing H-1Bs and change-of-employer H-1B petitions, can be filed throughout the year.) Unfortunately, as in previous years, we will likely only have a window of a few days before the cap is filled and we are left pining away for more H-1Bs for another year.

H-1B cap season can potentially be a stressful and busy time for employers and foreign nationals, and so we strongly recommend planning ahead and getting started on preparing cap cases as soon as possible. This upcoming H-1B cap season is for Fiscal Year (FY) 2020, and petitions can be submitted on March 29, for receipt on April 1, 2019 with a start date of October 1, 2019. Each new H-1B season is an excellent time to review what foreign nationals and employers should know about H-1B cap cases.

But before we get into all the H-1B cap details, we want to discuss the new final rule that the Department of Homeland Security (DHS) published last month that sets up electronic registration for H-1B cap cases as well as changes the order which H-1B cap petitions will be selected. The final rule, effective April 1, 2019, suspends the electronic registration for this year’s H-1B cap season (FY 2020)—so rather than registering the case for the FY 2020 cap, employers will still have to send in full H-1B petitions to be selected in the lottery, as they’ve done in past years. Nonetheless, the final rule requires USCIS to implement the new order of selecting petitions in this year’s cap lottery. USCIS will first select 65,000 H-1B petitions from all petitions submitted on behalf of all beneficiaries both for the regular and master’s degree cap. From the cases not selected in this initial drawing, USCIS will remove the master’s cap cases and conduct another lottery to select 20,000 master’s cap petitions (assuming that many remain). This change will likely increase the number of petitions selected for beneficiaries with a master’s or higher degree from a US institution by an estimated 16% (approximately 5,340 workers). We discuss below the reasoning for this change in more depth.

Okay, onto the details of the H-1B cap.

What is the H-1B Cap?

The H-1B is a nonimmigrant visa for foreign nationals who will be employed temporarily in a “specialty occupation,” or as fashion models of distinguished merit and ability. A specialty occupation is defined as one that requires a bachelor’s degree, or the equivalent experience, in order to perform the duties of the position offered. For example, architects, graphic designers, accountants, lawyers, engineers, and computer programmers, are all specialty occupations and, therefore, likely to be eligible for H-1Bs. H-1B petitions are granted for up to three years at a time, for a maximum of six years. H-1B visa holders may also be sponsored for permanent residence which could allow for an extension of the H-1B petition past the six years.   

Under the current law, there is an annual limit of 65,000 new H-1Bs. This is referred to as the “H-1B Cap.” There are an additional 20,000 visas available for current or prospective employees who possess an advanced degree earned at a US accredited educational institution. This is referred to as the “Master’s Cap.” New H-1Bs become available on October 1, the first day of the government’s fiscal year. USCIS will only start accepting petitions for a new H-1B six months prior to the beginning of their new fiscal year (i.e., April 1).

To whom does the H-1B cap apply?

The cap applies only to those individuals who have never held H-1B status or who have been outside the US for more than a year after having held H-1B status in the US. Renewals or extensions of H-1B status are not subject to the cap. In addition, cases filed by certain academic and research institutions are not subject to the cap. Petitions for J-1 physicians who receive a waiver of the two-year home residence requirement are also not subject to the cap.

How do I get one of these H-1Bs?

The most important step is for a foreign national to have a job offer with a US employer. That employer must file a petition with USCIS, including a Labor Condition Application (LCA) attesting the employer will pay the prevailing wage along with other attestations about its hiring endeavors. As mentioned, this petition can be filed no earlier than April 1 for the H-1Bs that become available in October. In the last few years, the number of petitions received by USCIS in the first week of April exceeded the number of available H-1Bs. Therefore, USCIS conducted a lottery of all cases received within a certain window of days. If a case was picked, it was adjudicated, and, if approved, the foreign national could start working on October 1 of that year.

Given how fast the H-1Bs ran out last year for FY 2019—USCIS announced that they received 190,098 H-1B cap-subject petitions during the filing period—we believe the cap this year may be hit in the first week again. If that is the case, USCIS will allow five business days to file all cases and then will conduct a random lottery. If the case is not selected, the file will be returned with the government filing fees likely within two to three months.

Can I ask multiple employers to file H-1Bs for me if I have multiple offers so I can increase my chances?

A single petitioner cannot file more than one cap-subject petition at a time for the same beneficiary. In some circumstances, multiple companies may be able to file a non-duplicative H-1B petition for the same beneficiary for different job opportunities. Companies who are interested in filing petitions for the same beneficiary should consult with an experienced attorney, since USCIS will likely closely scrutinize these types of petitions. 

Can I file my H-1B case via premium processing?

Last year USCIS suspended premium processing for all cap-subject petitions, including master’s cap exemption cases, starting April 2, 2018 (the first day H-1B cap petitions could be filed), and in September 2018 extended the suspension and expanded it to additional H-1B petitions. Although USCIS announced that the agency will resume premium processing for all pending FY 2019 H-1B cap petitions, including “master’s cap” advanced degree exemption cases, effective Monday, January 28, 2019, the previously announced temporary suspension remains in effect for all other categories of H-1B petitions to which the suspension applied. It’s likely that premium processing will not be available for FY 2020 H-1B cap petitions.   

I am a student and my work card runs out in the summer. I cannot afford not to work. What can I do?

With respect to students on F-1 visas who are working on Optional Practical Training (OPT) and STEM OPT extensions which expires after April 1 and before October 1, as long as the petitioning employer files the H-1B prior to the cap being hit and before the OPT expires, and as long as the case is selected in the H-1B lottery, the foreign national’s work authorization will be automatically extended until September 30 by virtue of the H-1B filing. This is called “Cap Gap.” To ensure that all is in order with their F-1 status, once foreign nationals are certain their H-1B case has been picked in the lottery:

  1. Foreign nationals must take the H-1B receipt notice to their school to receive a new I-20 indicating the extension of the OPT; and

  2. Foreign nationals must remain in the US between the expiration of the OPT and October 1 in order to have continued work authorization. If foreign nationals travel internationally during this time, they will abandon the change of status and may not be able to return to the US until September 21.

Wow, this is really ridiculous! You mean I have to ask an employer to pay a ton of fees and wait for me for six months and even then we have less than fifty percent chance of being picked? What can we do to change this?

Sadly, this is the current system until we have more H-1Bs. The immigration reform bill passed by the US Senate way back in 2013 contained language to make more H-1Bs available; however, this bill didn't proceed in the House and since then comprehensive immigration reform has completely stalled. US employers and businesses can contact their local congressperson or senator to explain the harm to US businesses when they cannot hire a foreign national under the H-1B program.

In the meantime, if foreign nationals have degrees in STEM fields (science, technology, engineering, and mathematics) from a US institution and are now working on OPT, they may be able to extend their OPT card for an additional seventeen months which would likely allow another chance to try for an H-1B in the following year.

Employers could also look into other visa options. For example, nationals of Canada, Australia, Singapore, and Chile may be able to apply under the TN, E-3, or H-1B1 respectively. A consultation with an immigration lawyer to review all the visa options available to the foreign national could be useful at this point. USCIS also lists the various visa categories and describes how one may be eligible.

Are there any changes to the H-1B program?

Yes. On April 18, 2017, President Trump issued the “Buy American and Hire American” Executive Order, instructing DHS to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Consequently, DHS has issued the final rule changing the order that H-1B cap petitions are selected as described above. DHS notes that changing the order will likely increase the number of petitions selected for beneficiaries with a master’s or higher degree from a US institution by an estimated increase of up to 16% (about 5,340 workers). USCIS Director L. Francis Cissna says that the agency is “furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process.”  

Additionally, after this executive order in 2017,  there was a significant increase in both the Requests for Evidence (RFE’s) and denials for H-1B petitions, even though there was no change in the law.  H-1B petition denials increased by 41% from the 3rd to the 4th quarter of FY 2017, and RFE’s in the 4th quarter of FY 2017 almost equaled the total number issued for the first three quarters of the same fiscal year combined. In our experience, in 2017, many of the RFE’s focus on a mistaken assumption that if a person holds a junior position in the company (as reflected by their salary) their duties would not be complex enough for them to be eligible for an H-1B. The Service was essentially confusing the seniority of the position with the complexity of the position. In 2018, the RFE’s simply questioned whether the job was complex enough to require a degree or whether the employer was justified in requiring a degree. Although we don’t have statistics on the number of RFE’s issued, it certainly seemed like the numbers issued were even higher than the previous year. It is likely that these issues or a variation of them will continue to come up again this year.

We will continue to update our blog regarding any changes to the H-1B program.

Any last words of advice?

Good luck, everyone!