New year, new H-1B cap! Now that we have (mostly) recovered from the parties and festivities of the holiday season, it’s time to dive straight into H-1B cap season. In about a month’s time—on March 1, 2020—we will be able to electronically submit H-1B registrations for fiscal year (FY) 2021 for individuals 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.) This year is notable since it is the first time that US Citizenship & Immigration Services (USCIS) will be using the H-1B electronic registration system on USCIS.gov. Earlier this month, USCIS formally announced the implementation of the electronic H-1B registration process and timeframe.
The H-1B registration requires employers seeking to file H-1B cap cases, including master’s cap cases, to first register online and pay a $10 registration fee in order to enter the H-1B lottery. If a case is selected in the lottery, employers will then be permitted to file full H-1B petitions during a filing period of at least ninety days. The initial H-1B cap registration period will run from March 1 through March 20, 2020. USCIS will then run the random selection process and will let applicants know if the case is picked no later than March 31, 2020. It is expected that the filing period will run from April until the end of June. 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.
What is the H-1B?
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. In previous years, USCIS would only start accepting petitions for a new H-1B six months prior to the beginning of their new fiscal year (i.e., April 1). This year, petitioners or authorized representatives must electronically register applicants between March 1 and March 20, 2020.
To whom does the cap apply?
The cap applies only to those individuals who have never had an H-1B visa 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. Petitioners as well as human resources departments should carefully consider anyone on OPT, STEM OPT, J-1, or O-2, and spouses with H-4 or L-2 work authorization for a possible H-1B. If a foreign national is currently on a TN or E-3 and wishes to pursue a Green Card, they should speak with an experienced immigration practitioner about whether it is necessary to convert to an H-1B.
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. If the case is selected in the lottery conducted after the electronic registration period, the 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. In the last few years, the number of petitions received by USCIS 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. Based on the number of H-1B submissions received by USCIS in previous years, it is likely that the agency will receive sufficient electronic registrations during the March 1 to March 20 registration period. If, however, USCIS determines that it is necessary to re-open the registration period, they will announce this on USCIS.gov.
Can I ask multiple employers to file H-1Bs for me if I have multiple offers so I can increase my chances?
Duplicate registrations are prohibited. Although petitioners can register multiple foreign nationals during a single online submission, a petitioner may only submit one registration per beneficiary in any fiscal year. If a petitioner submits more than one registration per beneficiary in the same fiscal year, all registrations filed by that petitioner relating to that beneficiary for that fiscal year will be considered invalid. 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.
What if the F-1 Optional Practical Training (OPT) expires between April 1 and before October 1?
With respect to students on F-1 OPT, whose OPT expires after April 1 and before October 1, if the case is picked in the lottery after the registration period closes, as long as the H-1B is filed prior to the expiration of the OPT, the foreign national's work authorization will be automatically extended until October 1, by virtue of the H-1B filing. To ensure the foreign national does not fall out of status:
The foreign national must take the H-1B receipt notice to their school to receive a new I-20 indicating the extension of the OPT;
The foreign national MUST remain in the US between the expiration of the OPT and October 1st in order to have continued work authorization. If they 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, 2020 if the case is approved;
If the student’s OPT expires before the employer has the receipt for filing the case, they will have to stop working until a receipt notice for the H-1B arrives indicating that they were selected in the lottery and the case was filed. The student may only resume working once the receipt notice has been issued;
If the H-1B is not approved by October 1, the foreign national will have to stop working if their OPT has expired.
What about J-1’s?
J-1’s do not get the same cap-gap extension like students on F-1 OPT. Additionally, foreign nationals under J-1 status should be intending to return to their home country at the end of their training.
When can foreign nationals start working if selected in the H-1B cap?
Although an H-1B petition may be approved before October 1, the foreign national may not commence work with the sponsor until October 1, 2020 or later, if the case is not approved by October 1, 2020 (unless they currently hold another valid work visa valid past September 30th).
Should petitioners file the case via premium processing?
In previous years, USCIS has suspended premium processing for all cap-subject petitions, including master’s cap exemption cases. We do not know if premium processing will be available this year but if it is given how much faster a case is processed with premium processing, it is generally worth the fee to know the outcome of the case as soon as possible.
Can foreign nationals travel internationally during the H-1B application process?
For any foreign national in the US in a valid status at the time the case is filed for change of status to H-1B, there will be consequences if they travel internationally while the change of status is pending with USCIS. Therefore, foreign nationals should consult with experienced immigration counsel regarding travel before any plans are booked to discuss the consequences.
What about all the requests for evidence for H-1Bs?
Over the last two years we have noticed a significant increase in Requests for Evidence (RFE’s) for H-1B cases in particular. They are focused on the whether the foreign national is being offered a “specialty occupation,” i.e., a position that is complex enough to require a specific degree. Additionally, junior positions are also under significant scrutiny. It is likely that USCIS will issue a number of requests for evidence again this year particularly for IT positions in the QA and computer analyst fields as well as for graphic designers and marketing or market research positions.
Additionally, USCIS will continue to conduct random site visits on H-1B sponsors. With respect to H-1B petitions, it is recommended to:
Be vigilant with record keeping, public access files, etc.;
Make sure that all H-1B fees are paid by the sponsor without seeking reimbursement from the foreign national; and
Withdraw petitions for foreign nationals if the sponsor no longer employs them.
What should companies do now?
To prepare for H-1B cap season, companies and human resource personnel should review their roster of foreign national employees focusing on:
Any employees with CPT or OPT (even if they have a year or two of STEM OPT left, they should apply annually to get the most “bites at the apple”);
Any employees in other nonimmigrant statuses that expire before 10/1/2021 (which will be the next opportunity to sponsor cap-subject H-1Bs);
Any employees who hold visas without “dual-intent” and who wish to apply for a Green Card including TN’s and E-3’s;
Any former employees that the company would like to bring back or potential new hires; and
Anyone the company petitioned for in previous H-1B caps who they wish to file for again;
Additionally, to prepare for the H-1B registration process, petitioning companies should create an account ahead of time on my.uscis.gov. Note that they will need to set up 2-factor authentication for the account. At the time of registration, petitioning companies will need to login to my.uscis.gov to approve the G-28 that their attorney prepares as well as review and approve H-1B registration details for all beneficiaries. Companies should designate an authorized “signer” from the petitioning company who can review and electronically approve the registrations the attorney prepares.
One they have a list of potential hires or employees they should consult with their immigration counsel to determine if they are eligible and should electronically register and, if selected, file for the H-1B petition.
Anything else to add?
Because the H-1B electronic registration system is a brand new procedure for the government, USCIS is still in the process of issuing guidance and answering questions about it. We will post any updates as they become available. Also: good luck, everyone!
UPDATE FEBRUARY 14, 2020:
USCIS notes that the agency will not be using pre-paid mailers to send out any communication or final notices for fiscal year (FY) 2021 cap-subject H-1B petitions, including for master’s cap cases. According to USCIS, using pre-paid mailers “requires a separate, more time-consuming manual process,” whereas printing and mailing cap-subject H-1B petition approval notices is fully automated and more time efficient. Consequently, the agency will use first-class mail to process all cap-subject petitions.