FY2020 H-1B CAP News Update

On May 20, USCIS will begin premium processing for FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker.  So, if you have already received an electronic receipt for your H-1B petition, the 15-day clock will not begin until 5/20/2019.

 

Employers who did not file Form I-907, Request for Premium Processing Service, concurrently with an FY 2020 cap-subject H-1B petition requesting a change of status must wait until premium processing begins on May 20 to submit Form I-907.

OTHER H-1B NEWS – DENIAL RATE SOARS

Denials for H-1B skilled worker visas jumped to a 10-year high in the first quarter of 2019. An analysis of the database of the U.S. Citizenship and Immigration Services by the National Foundation for American Policy, a non-partisan think tank, showed 32% of initial H-1B petitions were denied in the first quarter of the 2019 cycle (October-December).

The denial rate was 24% in FY2018, quadrupling from 6% in 2015. It never exceeded 8% from 2010 to 2015, the Obama years.

FY2020 H-1B CAP UPDATE

On April 10, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated regular cap and the U.S. advanced degree exemption for fiscal year (FY) 2020. After completing the random selection process for the regular cap, USCIS also determined that it has received a number of petitions projected as sufficient to meet the 20,000 H-1B visa U.S. advanced degree exemption, also known as the master’s cap.

USCIS received 201,011 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. USCIS announced on April 5 that it had received enough petitions to reach the congressionally mandated H-1B regular cap of 65,000.

Information on Premium Processing for FY2020 H-1B cap cases

Premium processing will be offered in a two-phased approach during the FY 2020 cap season so USCIS can best manage the premium processing requests without fully suspending it as in previous years. The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase will include all other FY 2020 cap-subject petitions.

Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service. However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately. USCIS will begin premium processing for these petitions no later than May 20, 2019, and will notify the public before premium processing begins for these petitions. If a petitioner does not file Form I-907 concurrently with an FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907. Until premium processing begins for these petitions, USCIS will reject any Form I-907 that is not filed concurrently with a cap-subject Form I-129. Petitioners must appropriately select response “b” for Item 4 in Part 2 of Form I-129 to be eligible to concurrently file Form I-907.

Premium processing for all other FY 2020 cap-subject H-1B petitions will not begin until at least June 2019. Cap-subject petitioners not requesting a change of status may not submit their premium processing request concurrently with their H-1B petition. These petitioners will be eligible to upgrade to premium processing by filing Form I-907 once premium processing begins for this group. USCIS will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status.

FY2020 H-1B CAP UPDATE

USCIS announced Friday, April 5, 2019, that it has received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa regular cap for fiscal year 2020. USCIS will next determine if they have received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap.

USCIS PROPOSES CHANGES TO H-1B LOTTERY PROCESS

Under this USCIS proposal, employers seeking to file H-1B cap-subject petitions must register electronically with USCIS during a designated registration period. Also, USCIS would reverse the order by which the agency selects H-1B petitions,  conducting the general lottery first, and then selecting the advanced degree exemption cases. The expectation is that more petitions would be selected for advanced degree applicants.  USCIS is accepting public feedback on the proposed regulation until January 2, 2019.

The electronic registration period would begin at least 14 calendar days before the first date the H-1B filing window opens each fiscal year, and would remain open for at least 14 calendar days. USCIS would give at least 30 calendar days’ notice of the registration period on the USCIS website.

USCIS would then conduct the annual H-1B lottery from the pool of timely-filed electronic registrants. The rule proposes that employers whose petitions are selected will be notified that they are eligible to file an H-1B petition within a designated filing period. The duration of the filing period for registrants who are selected would be at least 60 days. USCIS anticipates staggering notifications so that the thousands of H-1B petitions selected in the lottery are received over a period of time for more efficient adjudication.

Employers would need to file a separate registration for each beneficiary and would be limited to one registration per beneficiary for the same fiscal year. USCIS is not proposing to charge a fee for electronic registration at this time.

Given the late publication of the proposed regulation, it is uncertain whether the agency will be able to finalize and implement the proposed regulation in time for the FY2020 lottery.  Thus, we will proceed with FY2020 case preparation as in the past.

If you anticipate having any H-1B cap cases that will need to be filed during the April 2019 filing period, please contact Susan E. Lane ASAP!

SUSPENSION OF H-1B PREMIUM PROCESSING

FROM USCIS:

USCIS is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. We expect these suspensions will last until Feb. 19, 2019, and will notify the public via uscis.gov before resuming premium processing for these petitions.

While H-1B premium processing is suspended, we will reject any Form I-907, Request for Premium Processing Service filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected.

Who Is Affected

The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings as noted below).

The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.

We will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before Sept. 11, 2018. Therefore, we will refund the premium processing fee if:

  • The petitioner filed the Form I-907 for an H-1B petition before Sept. 11, 2018; and
  • We did not take adjudicative action on the case within the 15-calendar-day processing period.

Premium Processing Remains Available for Certain H-1B Petitions

The suspension does not apply to:

  1. Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
  2. Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
    1. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or
    2. Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129).

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. The petitioner must demonstrate that they meet at least one of the expedite criteria, and petitioners should be prepared to submit documentary evidence to support their expedite request.

We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times by allowing us to:

  • Process long-pending petitions, which we have been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
  • Be responsive to petitions with time-sensitive start dates; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.