Client Alerts

H-1B Cap Season is Here. Is Your Company Ready?

By: David W. Leopold

About: Immigration

Yesterday, U.S. Citizenship and Immigration Services (USCIS) announced the start of the fiscal year (FY) 2020 cap season, the start dates for premium processing of cap-subject H-1B petitions, and the launch of USCIS’s new H-1B data hub.

Employers wishing to hire H-1B professionals, including students completing their Optional Practical Training (OPT), should be aware of the changes to the program. The H-1B visa permits U.S. employers to temporarily employ foreign workers in specialty occupations. The law caps the number of H-1B visas to 65,000, plus an additional 20,000 visas for foreign nationals who hold master’s or higher degrees from American universities.

Since the number of cap-subject H-1B petitions filed each year typically far exceeds the number of available slots, USCIS has traditionally run an “H-1B Lottery” to select which H-1B petitions will fall within the statutory H-1B cap for the upcoming fiscal year, which begins on October 1, 2019. Since H-1B petitions may be filed no earlier than 180 days in advance of the October 1 start date, most cap-subject H-1B petitions are filed on or shortly after April 1 each year.

In yesterday’s announcement, USCIS outlined the new cap selection process:

“In January, the Department of Homeland Security announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, which will be in effect for the FY 2020 cap season. This simple change increases the chances that more of these visas will be granted to those with an advanced degree from a U.S. institution of higher education.”

Start of the FY 2020 Cap Season

USCIS will begin accepting cap-subject H-1B petitions on April 1, 2019. In its announcement, USCIS re-emphasized its commitment to “fulfilling the president’s Buy American Hire American executive order,” which, as many employers have learned over the past two years, has led to increased, and in many cases unwarranted, scrutiny of H-1B petitions.

USCIS Will Accept Cap-Subject H-1B Petitions for Premium Processing

Under the USCIS premium processing program, the agency guarantees a 15-day processing time. In the past, USCIS has suspended premium processing of cap-subject H-1B petitions. This year USCIS will consider cap-subject H-1B petitions filed with premium processing requests in two distinct phases.

First, USCIS will consider cap-subject petitions requesting a change of status to H-1B – for example, where the employee is currently in the United States in OPT status and the petition requests that his or her status be changed to H-1B. Second, USCIS will consider all other cap-subject petitions – for example, if the prospective employee is waiting for his or her visa overseas.

USCIS has set forth specific instructions to employers wishing to take advantage of the premium processing option. The agency will begin premium processing cap-subject petitions no later than May 20, 2019.

Ulmer takes a business-oriented approach to helping clients secure the talent that drives their businesses. For more information about the start of the FY 2020 cap season and premium processing of cap-subject H-1B petitions, please reach out to our Immigration Law Group.