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Please join GT Immigration & Compliance Practice Shareholders Kate Kalmykov and Nataliya Rymer, along with global immigration services provider Newland Chase, for a timely webinar titled “Preparing for the FY 2024 H-1B Cap Selection Process” Feb. 1, 2023 at 1 p.m. EST.

USCIS has confirmed the FY 2024 H-1B cap initial registration period will open March 1, 2023. Beneficiaries of successful FY 2024 H1B petitions will be eligible to start working in the United States Oct. 1, 2023.

The presenters will discuss common questions that may arise when registering for H-1B visas regarding:

  • Registration Process
  • Requirements
  • Electronic Registration Process

Click here to register for the event.

The USCIS has confirmed that the FY 2022 H-1B cap initial registration period will be open from March 9, 2021, 12:00 p.m. EST to March 25, 2021, 12:00 p.m. EST.

The USCIS has further confirmed that the H-1B registration process and, if needed, a subsequent lottery will follow the same process as instituted for FY 2021. This means that H-1B cap-subject petitioners and their representatives are required to create and use a myUSCIS online account to register and pay the required $10 registration fee for each beneficiary. Each organization must have a myUSCIS online account for each entity that will sponsor beneficiaries.

The USCIS has also indicated that if it receives more than the requisite amount of registrations by March 25, it will hold a random selection and plans to notify myUSCIS account holders by March 31. USCIS has delayed the implementation of a final rule, which would base the H-1B selection process on wage levels.

As a reminder, the following information is required for each proposed beneficiary to submit the registration:

  • Beneficiary’s full name, as it appears on their passport
  • Beneficiary’s date of birth and country of birth
  • Beneficiary’s passport number and country of citizenship
  • Confirmation whether the beneficiary is eligible for the U.S. advanced degree cap. A beneficiary is eligible for the U.S. advanced degree cap if they will obtain the advanced degree by the time the H-1B petition is filed with USCIS.

The earliest day a selected FY 2022 H-1B petition will be accepted by the USCIS is April 1, 2021. Petitioners will have a 90-day period to submit petitions. It is recommended to prepare and file supporting Labor Condition Applications with the Department of Labor as soon as possible to ensure that selected FY 2022 H-1B petitions can be filed with USCIS timely.

The USCIS has yet to confirm if and when it will accept Premium Processing requests for FY 2022 H-1B petitions.

The USCIS notice regarding the FY 2022 H-1B cap initial registration period can be found here: H-1B Electronic Registration Process

Per its announcement on June 7, USCIS started accepting premium processing requests for all remaining FY 2020 cap-subject H-1B petitions on June 10, 2019. This allows petitioners to file Form I-907, Request for Premium Processing Service with the service center processing their cap-subject H-1B petition. Previously, USCIS accepted premium processing requests only for FY 2020 cap-subject H-1B petitions requesting a change of status.

On March 19, USCIS announced it would offer premium processing requests in a two-phase approach for the FY 2020 cap season to “best manage the premium processing requests without fully suspending it as in previous years.” The first phase allowed premium processing for FY 2020 cap-subject H-1B petitions requesting a change of status. The second phase now allows premium processing for all other FY 2020 cap-subject H-1B petitions.

Initially 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 could request premium processing by concurrently filing Form I-907, Request for Premium Processing Service with the petition. However, USCIS would not begin premium processing for these petitions until May 20, 2019. Petitioners 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 had to wait until premium processing began on May 20 to submit Form I-907, Request for Premium Processing Service.

Prepaid Mailer Temporary Suspension:

From June 10 to June 24, USCIS will not use prepaid self-addressed return mailers to return final notices for premium processing for FY 2020 cap-subject petitions that do no request a change of status. USCIS claims “using pre-paid mailers requires a separate and more time-consuming manual process” while use of “regular mailer is fully automated.”

For more on H-1B petitions, click here.

On May 17, USCIS announced completion of data entry for all fiscal year 2020 H-1B cap-subject petitions selected in its computer-generated random selection process. USCIS will now begin returning petitions that were not selected. USCIS will issue another announcement once it has finished returning all petitions that were not selected. As has been the case in the past, due to the high volume of petitions received, USCIS cannot provide a definite time frame for returning unselected petitions. USCIS asks petitioners not to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition.

As also has happened in the past, USCIS may transfer some Form I-129 H-1B cap subject petitions between the Vermont Service Center and the California Service Center to balance the distribution of cap cases. If a case is transferred, the employer should receive notification in the mail and should direct all future correspondence to the center processing the petition.

Because premium processing for 2020 H-1B cap subject petitions was available for certain petitions, USCIS will begin issuing decisions or requests for evidence on those petitions filed via premium processing. Hopefully, this will alleviate the processing time delays that plagued last year’s H-1B cap subject adjudications, some of which were not adjudicated until around Spring 2019. Anyone who has not filed a request for premium processing of their H-1B cap subject petition may now file such request.

For more on H-1B petitions, click here.

On April 10, 2019, USCIS announced it used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated regular cap and U.S. advance degree exemption (Master’s cap) for fiscal year (FY) 2020.

USCIS received 201,011 petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 5, USCIS announced it had received enough petitions to reach the congressionally mandated H-1B regular cap of 65,000 visas. After completing the random selection process for the regular cap, USCIS also determined it had received a number of petitions projected as sufficient to meet the 20,000 H-1B visa U.S. Master’s cap.

In accordance with the new H-1B regulation, USCIS first conducted the selection process for H-1B cap-subject petitions submitted on behalf of all beneficiaries, including those who may have been eligible for the Master’s cap. USCIS then selected a number projected to reach the advanced degree exemption from the remaining eligible petitions. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for concurrent H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2020 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

For additional updates, H-1B applicants may subscribe to the H-1B Cap Season email located on the H-1B FY 2020 Cap Season page.

For more on H-1B petitions, click here.

˘ Not admitted to the practice of law.

Premium Processing Available

U.S. Citizenship & Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions on April 1, 2019, for employment start dates effective Oct. 1, 2019, the start of the 2020 fiscal year. Rather than suspending premium processing for cap-subject H-1B petitions, USCIS announced that it will implement a two-phased approach to requests for premium processing during this year’s H-1B cap season:

  • Phase one: Only H-1B change of status petitions (i.e. F-1 to H-1B, TN to H-1B, etc.) may be premium processed under this year’s cap.
  • Phase two: USCIS will not commence premium processing of these cap-subject petitions immediately. USCIS said it will make an announcement, most likely after it has completed the lottery selection process during the second week of April, as to when it will start reviewing affected petitions under the 15-day premium processing service. USCIS expects the premium processing service for affected petition to start no later than May 20, 2019.

Premium processing for all other FY 2020 cap-subject H-1B petitions will be announced at a later date, but not before June 2019. USCIS’ premium processing service provides expedited processing of an H-1B petition within fifteen calendar days for an additional government filing fee of $1,410.

Changes to H-1B Cap Selection Process

As previously announced on our blog, USCIS will be reversing the order by which it selects H-1B petitions under the regular cap and the advanced degree cap for beneficiaries who have earned a U.S. master’s degree or higher from a U.S. institution. Instead of first selecting 20,000 petitions under the U.S. master’s cap, the regular cap of 65,000 will be selected first. This should increase the number of petitions selected for beneficiaries with a U.S. master’s degree or higher, which is a goal of the current administration. USCIS estimates that the change will result in an increase of up to 16 percent in the number of selected petitions for beneficiaries with a U.S. master’s or higher degree.

New H-1B Data Hub

Effective April 1, 2019, a new H-1B Employer Data Hub will be available on uscis.gov that will allow the public to search for H-1B petitioners by a variety of inputs. USCIS has stated that the data will increase transparency in the H-1B program and allow the public to calculate approval and denial rates. The Department of Labor, Office of Foreign Labor Certification (OFLC), which administers the Labor Condition Application (LCA) for the H-1B program, already releases data on a quarterly basis, but this does not include data on ultimate petition approval or denial by USCIS. Please continue to monitor GT’s Inside Business Immigration Blog for additional updates regarding the new H-1B data.

Finally, please initiate any H-1B cap cases as soon as possible as time is running out.  GT expects the H-1B cap to close at the end of business on April 5, 2019 and, thereafter, will remain closed until April 1, 2020 when next year’s cap opens.

For more on H-1B petitions, click here.

˘ Law clerk/JD

H-1B cap season is once again around the corner. On March 29, 2019, hundreds of thousands of H-1B cap petitions will be shipped to USCIS Service Centers in Vermont and California for selection in this year’s cap season. Assuming premium processing does not come back, the wait time for that receipt notice seems to stretch on forever as an indication that the lucky petition was picked. The question that always comes up refers to international travel during H-1B cap season, since April and May seem to go into a black hole of no news. Can a beneficiary for an H-1B cap petition travel outside the US during the H-1B cap? The answer is extremely lawyerly: It Depends. Below, we lay out the scenarios for different classifications as to who may or may not travel internationally, and if travel is a must, what the implications mean.

F-1 Students

Relying on Cap Gap: If you are an F-1 student, and relying on cap gap, you should not travel before you receive news of whether your petition has been selected and approved. If you do travel and you are relying on cap gap for work authorization, you may not be able to return to the United States, as your F-1 status is no longer valid. If your H-1B petition has been selected and approved (as a change of status), then you may travel and return before Oct. 1, if you meet certain conditions; however, we strongly recommend against travel during this period if you are relying on cap-gap.

Not Relying on Cap Gap: If you are an F-1 student and your EAD is still valid, you may travel, with all the required documentation for F-1 students. However, note that if you do travel, and your petition was filed as a Change of Status, the petition will automatically be approved as a Consular Notification because you will be deemed to have abandoned your Change of Status application by traveling outside the United States while it was pending.

Other Non-Immigrant Status

If you are on a different non-immigrant status – for example, H-4, TN, O-1, and you know you have international travel plans between the months of April and October, it may be smart to have your petition filed as consular notify if your current non-immigrant status will still be valid and you have the proper visa and other documents. If you travel during the period between April 1 and Sept. 20 (because you may enter up to 10 days before the start date in H-1B status), and your petition was filed as a Change of Status, the Change of Status will be denied and you will need to exit the U.S. and reenter to “activate” the H-1B after Sept. 20, after the H-1B petition has been approved.

If you have any further questions, please contact a team member at Greenberg Traurig. We will continue to post updates and practice pointers for the upcoming H-1B cap season.

For more on H-1B cap petitions, click here.

Starting on Monday, Jan. 28, USCIS will resume premium processing for all fiscal year (FY) 2019 H-1B cap petitions, including those eligible for the advanced degree exemption (the Master Cap). This applies to any H-1B cap petition filed in or before April 2018. Any petitioner who has received requests for evidence (RFEs) regarding their pending FY2019 cap petitions may include a request for premium processing form (Form I-907) with their RFE response.

The previously announced temporary suspension of premium processing remains in effect for all other categories of H-1B petitions to which it applied. USCIS plans to resume premium processing for the remaining categories of H-1B petitions as soon as capacity permits and will notify the public accordingly. This latest announcement throws into doubt whether USCIS will resume premium processing on Feb. 19, 2019, as previously announced in September 2018.

When a petitioner requests premium processing service, USCIS guarantees a 15-day processing time. If USCIS does not take adjudicative action within the 15-calendar day processing time, the Service will refund the petitioner’s premium processing service fee and continue to expedite processing of the petition. This service is only available for pending petitions, not new submissions.

˘ Not admitted to the practice of law

On Nov. 30, 2018, the Department of Homeland Security issued the notice of proposed rulemaking to amend its H-1B cap-subject lottery process that USCIS conducts every year. The proposed rule seeks to amend the way H-1B cap-subject petitions are submitted for the lottery, and also the way H-1B cap-subject petitions are randomly selected. USCIS proposes a 30-day comment period that makes comments due on the proposed rule by or on Jan. 2, 2019. As of this writing, no group has formally requested an extension of the comment period, although it is widely believed that interested parties will request an extension of comment time. An extension, if granted, would lengthen the regulatory process time and make implementation by Q2 2019 (as stated) uncertain. As such, it is unclear whether this rule can be implemented for the H-1B cap season beginning April 1, 2019, for fiscal year 2020.

Background

The government’s fiscal year begins each year on Oct. 1. The soonest an H-1B petition can be filed is 180 days prior to the start date, and as Oct. 1 is the first possible start date, the petition cannot be filed until April 1 of each year, hence the H-1B lottery “opening” every year for filing. The H-1B cap each year allows for 20,000 slots for those who have a U.S. Master’s degree (or higher), and another 65,000 for everyone else. If USCIS receives more than 85,000 total petitions on April 1, it will conduct a random lottery to first select the 20,000 petitions that fall under the Master’s degree cap, then conduct a second lottery to select the remaining 65,000 numbers. In years past, the following number of petitions have been received*:

Year Number of H-1B cap subject petitions received
2017 198,460
2016 236,444
2015 232,973
2014 172,581
2013 124,130

*Courtesy of DHS

The proposed changes will alter the manner H-1B cap-subject petitions are received, and the way they are counted, as explained below:

Electronic Pre-registration

The proposed rule will change the way H-1B petitions are filed. Instead of employers and/or their attorneys submitting an H-1B petition for every beneficiary, USCIS is proposing that employers first electronically register with the agency. Under the proposed rule, there would be a designated registration period before the petitions can be received. Once all employers electronically register the beneficiaries for which they wish to file H-1B petitions, USCIS will run a lottery system to meet the cap if the number exceeds 85,000. If the number of electronic preregistrations does not reach 85,000, USCIS will notify all petitioners that they may file the petitions. Otherwise, if USCIS runs a random lottery on the pre-registered names, petitioners will be notified whether their names have been selected and whether they may file H-1B petitions within a designated time frame.

Running the Lottery

In previous years, the lottery was conducted first for all U.S. Master’s degree (or higher) recipients to meet the 20,000 quota. After the Master’s cap lottery was run, USCIS would move the remaining U.S. Master’s petitions with all other petitions to select the remaining 65,000 petitions. USCIS is now proposing that through the electronic preregistration, the 65,000 “all” petitions lottery would be run first; then, to select the 20,000 Master’s petitions quota, only the remaining U.S. Master’s petitions would be run. USCIS reasons that this will give U.S. Master’s petitions a higher likelihood of being selected.

DHS also proposes to include a severability clause, where DHS would be able to implement either the electronic pre-registration or change how the lottery is run, independently, if they cannot be done together for any reason.

Implications

What does this mean for employers, USCIS, and law firms? For USCIS and employers, this proposal will drastically cut legal fees and costs. Petitioners will only be filing petitions that have already been “pre-selected,” and USCIS will not be returning a hundred thousand petitions, or more, by U.S. Postal Service. Employers will also be able to make alternate plans for their employees at an earlier date because the electronic lottery will be faster, instead of waiting until well into summer for a petition to come back as not selected in the lottery. Law firms will also be able to plan better for their clients in terms of alternative work authorization paths, should the petitioner not be selected in the electronic lottery.

It is unclear how long the processes will last, including the electronic pre-registration period, the selection period, or the filing period for selected beneficiaries. The proposed rule states that the filing period for H-1B cap-subject petitions will be at least 60 days. Greenberg Traurig will continue to monitor news in this area.