As a reminder to all U.S. employers, H-1B season is almost here! United States Citizenship & Immigration Services (“USCIS”) will start accepting new H-1B petitions for the next Fiscal Year on Monday, April 1st, 2019. As such, employers should start immediately identifying current and future employees who will require sponsorship for new Cap-subject H-1B nonimmigrant work visa petitions.
By way of background, the USCIS issues H-1B work visas to foreign national workers serving in “specialty occupations at a professional level.” A specialty occupation requires the application of a theoretical and practical body of highly-specialized knowledge, to be performed by a worker with at least the equivalence of a U.S. bachelor’s degree in the field.
Both the position to be filled and the foreign worker’s qualifications must meet the criteria for a “specialty occupation”.
Based on the new rule proposed on December 3rd, 2018, USCIS plans to eliminate the current requirement that employers file Cap-subject H-1B petitions during the first week of April. Instead, should the regulation become effective in 2019, it has been proposed that employers will be given a 15-day period at least 2 weeks prior to April 1st to submit online registration forms. Also, and in contrast to prior years, the lottery for 65,000 H-1Bs will occur prior to the lottery for 20,000 H-1Bs for beneficiaries with advanced degrees from U.S. academic institutions – universities.
Whether the new proposed rule go into effect in 2019 is still at issue? USCIS has limited the comment period on the proposed regulation to 30 days which signals that the USCIS wishes to implement the new online registration system in 2019. However, if this is not possible, USCIS will have to wait until 2020 to do so. In the interim, the lawyers. and the Immigration Specialists, at the NPZ Law Group will continue to follow the old H-1B filing procedures.
The statute provides for an annual quota of 65,000 new H-1B visas that can be issued in any given fiscal year, which runs from October 1st to September 30th. In addition, there is a separate quota of 20,000 H-1B nonimmigrant work visas per fiscal year for graduates of U.S. advanced degree programs, for a total of 85,000 H-1B visas. Last year, USCIS received 190,098 H-1B petitions within the first week of filing.
Because the annual quota has been met within days of the first day of filing (April 1st, which is six months before the start of the fiscal year) on a consistent basis, all petitions are subject to a random computer lottery system. As such, only those petitions selected in the lottery may proceed to adjudication. Given last year’s H-1B demand and the seeming improvement in the economy, we are expecting that this year’s H-1B demand will be even greater then it was last year. Affected foreign nationals, whose petitions are not chosen, will be unable to obtain an H-1B visa until the next fiscal year and may be required to forego employment with employers and possibly leave the United States.
In such instances, employers will need to look at alternative nonimmigrant work visa options (e.g., the L, O, P and R) for impacted employees.
We strongly urge our client employers and prospective client employers to consider filing H-1B cap-subject petitions with USCIS on the earliest possible date in April 2019.
Ideally, this would mean mailing the petition to USCIS on March 31st, 2019 for delivery to USCIS on April 1st, 2019, the very first day of filing.
Obtaining an H-1B nonimmigrant work visa for an employee requires advance planning. It can take sometimes two to six weeks to gather all of the necessary information and supporting documentation, file the Labor Condition Application (LCA), and prepare the petition for filing with USCIS. As such, H-1B hopeful employers should begin gathering the necessary