On October 1, 2019 the U.S. Citizenship & Immigration Service (USCIS) will release the H-1B visa numbers for the 2020 fiscal year. While October may seem like a long way away, H-1B petitions my be filed starting April 1, 2019 - six months in advance of the H-1B start date.
The USCIS has proposed a change to the usual H-1B process that would require pre-registration of prospective H-1B petitions. The USCIS would then conduct the lottery based on the pre-registered cases and would then accept H-1B petitions only for the selected cases. At this time, with only 3 months until H-1B cap-subject cases would normally be filed, it is unclear whether the new system will be implemented this year or postponed until FY2021. At this point, we are proceeding on the basis that the H-1B lottery process will be unchanged from prior years. If there is a change in this, I will send out another client alert.
Assuming the process remains unchanged, on April 1, literally thousands of H-1B petitions will be filed to claim one of the 85,000 H-1B visa numbers (20,000 of which are reserved for those who have received a Master's degree or higher from an academic institution in the U.S.).
Last year, all 85,000 H-1B visa numbers for the 2019 fiscal year were exhausted the first week of April. In fact, over 190,098 petitions were received by the USCIS during the first week of April. As a result, at the end of that week the USCIS could not accept any additional petitions and a lottery was held to determine which of the petitions received would be awarded one of the available H-1B visa numbers. Following the conclusion of the lottery, approximately two thirds of the petitions that were submitted were rejected as the H-1B quota had been exhausted.
This year, it is anticipated that a similar number of H-1B petitions will be filed.
If you think you may need to file an H-1B petition on April 1, and have not already brought this to my attention, please contact me as soon as possible so I can evaluate the case and let you know if the H-1B petition should be filed this year. This includes filing H-1B petitions for F-1 students whom you currently employ under Curricular Practical Training (CPT) or Optional Practical Training (OPT), as well as employees who are working under a different visa category such as J-1, L-1, E, TN, etc.
Due to high demand for the limited number of H-1B visa numbers, employers should not wait until an employee has only one chance left for an H-1B visa. By filing an H-1B cap petition when an employee has at least two chances to be selected in the lottery (FY2020 and FY2021), will increase the chances that the employee will be selected in the lottery before his/her current nonimmigrant status expires. For employees currently working pursuant to F-1 OPT, it is best if the employee's OPT will be valid at least until 04/01/2020 as this will provide a second opportunity for an H-1B visa number next year if the petition is not selected this year. For individuals in a status other than F-1, their current status will need to be valid through 09/30/2019 in order to be able to have a second opportunity for an H-1B visa number.
I have been maintaining a list of potential H-1B petitions for any employees that you have already brought to my attention and will contact the representatives of each employer shortly so that you can determine if you wish to proceed with filing H-1B petitions for the individuals on the list and/or if there are any additional individuals you would like to add to the list. We will then initiate the H-1B cap cases over the next week or two.
I encourage employers not to wait until the last minute to initiate an H-1B cap petition. Remember that it takes at least 1 week to prepare an H-1B petition from the date that all the necessary information and documents have been received from the employer and the beneficiary because it takes the Department of Labor 1 week to certify the Labor Condition Application (LCA), a precursor to filing an H-1B petition. Historically, as demand increases during the H-1B cap season, the LCA system is burdened to the point where LCA processing becomes lengthier and often the LCA system shuts down entirely. In addition, the possibility of another government shutdown in February will also delay the filing of LCAs as the iCert system is not operational during government shutdowns. So, advanced planning will ensure that the H-1B petitions on behalf of your employees will be timely filed the first week of April.
Remember that all individuals who have not previously held H-1B status are subject to the H-1B quota.