FY 2020 H1B Cap Season To Begin With Changes

 

Updates

Apr. 5, 2019: The USCIS announced that it received a sufficient number of H1B petitions to reach the 65,000 H1B visa regular cap for FY 2020. Please see our post on the news to learn more [see blog].

Apr. 3, 2019: The USCIS formally announced that it will begin premium processing of FY 2020 cap-subject H1B petitions requesting change of status on May 20, 2019. The policy is the same as reported below in our original article. Petitioners requesting change of status may request premium processing concurrently with the Form I-129. If the request is not made concurrently, the petitioner will have to wait until May 20, 2019, to request premium processing. The USCIS also announced that it will not use pre-paid mailers to send out final notices for premium processing of these petitions between May 20 and June 3, 2019. Please see our blog post to learn more [see blog].

Introduction

On March 19, 2019, the United States Citizenship and Immigration Services (USCIS) announced the start date for the FY 2020 H1B cap season [PDF version]. Additionally, it introduced several new changes and policies that will be implemented at the start of the FY 2020 cap season. We will examine the news in this post.

FY 2020 Cap Season to Begin on April 1, 2019

The FY 2020 H1B cap season will begin on April 1, 2019. The USCIS will reject any H1B petitions subject to the FY 2020 H1B cap that are filed before April 1, 2019. The USCIS cautions petitioners to “follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence.” Petitioners may consult the Form M-735, Optional Checklist for Form I-129 H-1B Filings, for guidance on all of the statutory and regulatory requirements for H1B petitions.

Premium Processing of FY 2020 Cap-Subject Petitions

The USCIS has intermittently suspended premium processing of H1B petitions on several occasions over the last couple of years. In order to avoid having to do so in FY 2020, the USCIS will introduce a new two-phased approach to premium processing.

Phase one will begin on April 1, 2019, with the commencement of the FY 2019 H1B cap season. Beginning on that date, FY 2020 H1B cap-subject petitioners who are requesting a change of status on the Form I-129, Petition for a Nonimmigrant Worker, will be able to request premium processing concurrently with their Form I-129 by filing the Form I-907, Request for Premium Processing Service. The USCIS will not, however, begin premium processing of phase one petitions immediately. Instead, the USCIS will prioritize data entry for FY 2020 cap-subject H1B petitions. The USCIS will begin actually premium processing the petitions no later than May 20, 2019. It will provide public notification before it begins accepting premium processing requests.

Regarding phase one, petitioners who want to avail themselves to premium processing starting on April 1, 2019, will have to file their premium processing requests concurrently with their FY 2020 H1B cap-subject petition requesting a change of status. If the Form I-907 petition is not filed concurrently, the petitioner will have to wait until the USCIS begins premium processing on a date to be announced before May 20, 2019.

Phase two will involve all other FY 2020 cap-subject H1B petitions. The USCIS advises that premium processing of these petitions will not begin until at least June 2019. Unless the FY 2020 cap-subject petitioner is requesting a change of status, the petitioner will not be permitted to submit a request for premium processing concurrently with the H1B petition. However, once the USCIS commences premium processing for all FY 2020 cap-subject H1B petitions, “[t]hese petitioners will be eligible to upgrade to premium processing by filing Form I-907…” The USCIS will provide public notice before it begins premium processing for all FY 2020 cap-subject H1B petitions.

The USCIS stated that premium processing for H1B petitions that are exempt from the cap remains available at this time.

To learn about premium processing for Form I-129 petitions, please see our full article [see article].

New H1B Cap Selection Process

In January of 2019, the Department of Homeland Security (DHS) published a final rule amending the H1B cap-selection process [PDF version].

For the FY 2020 cap selection process, the USCIS will first select H1B petitions submitted on behalf of all beneficiaries, including those petitions which may be eligible for an advanced degree exemption. After completing this step, the USCIS will then select a sufficient number of petitions to reach the cap for the advanced degree exemption. The purpose of the change is to “increase the number of petitions for beneficiaries with a master's or higher degree from a U.S. institution of higher education” [PDF version].

H1B Data Hub

A new feature called the “H-1B Employer Data Hub” will be available on the USCIS website starting on April 1, 2019. It will “allow[] the public to search for H1B petitioners by fiscal year, NAICS industry code, company name, city, state, or zip code.” The purpose of the H1B Employer Data Hub is to promote transparency by giving the public easy access to statistics about H1B petitioners.

Conclusion

The USCIS's news release about how it will handle the FY 2020 H1B cap season has two key points.

First, the USCIS will not begin premium processing immediately. Rather, premium processing will begin first for cap-subject petitions requesting change of status and second for all other cap-subject petitions. Regarding those requesting change of status, petitioners must remember to file a request for premium processing concurrently with the petition in order to obtain premium processing at the earliest possible opportunity.

Second, the USCIS's reversal of the order in which it considers petitions that may qualify for the master's cap and all other petitions will likely lead to more petitions filed on behalf of beneficiaries with a master's degree or higher will ultimately be selected.

Petitioners should consult with an experienced immigration attorney throughout the H1B filing process for guidance on filing the petition and ultimately having it approved after the H1B lottery is complete.

To learn about work visas generally, please see our growing selection of articles on the subject [see category].