A crowd of people crossing a crosswalk in a busy city

The Immigration Observer

It’s H-1B Cap Season, What Does That Mean for Employers?

February 19, 2019 | Lepore Taylor Fox

What is the H-1B Visa:

The H-1B visa grants temporary employment authorization to foreign workers who will engage in a specialty occupation in the United States. To be eligible for this visa, the foreign worker must have a bachelor's or higher degree (or foreign equivalent) in a field that is directly related to the position they will hold in the U.S. Some examples of specialty fields which could support an H-1B visa include IT, finance, accounting, engineering and math to name a few.  The initial length of stay granted by this visa is typically three years, but it can be extended to six years. 

What is the H-1B Cap:

There is an annual cap on the number of H-1B visas that the government can issue each fiscal year:  65,000 visas with an additional 20,000 visas for beneficiaries holding a U.S. advanced degree (master’s or higher).  These two categories are commonly known as the Regular Cap and the Advanced Degree Cap, respectively.  Due to the finite number of H-1B visas available under this quota system and the high demand for such visas in the U.S. labor market, U.S. Citizenship & Immigration Services (USCIS) often receives more H-1B petitions than the quota permits. When this occurs, H-1B cap petitions become subject to a random lottery to determine which petitions will be selected.

Timing Is Everything:

Applications for the H-1B visa are accepted starting on April 1st for the upcoming government fiscal year which begins on October 1. USCIS continues to accept petitions until the quota is filled.   Due to the high demand, the quota usually fills quickly.  In recent years, the quota was met and exceeded on the first day of filing. Therefore, USCIS implemented a system whereby all petitions filed in the first 5 business days of April would be accepted and have an opportunity to compete for the available visas via a random lottery. 

Last year, USCIS received more than 190,000 H-1B cap-subject petitions, and the H-1B visa quota was reached during the first week of filing for the sixth consecutive year.  Because we anticipate that the H-1B quota will be reached quickly again this year, employers should plan to file all H-1B cap petitions on April 1, 2019.

Although H-1B petitions will be accepted as of April 1, 2019, H-1B visa holders cannot begin working in H-1B status until October 1, 2019, the beginning of the government fiscal year 2020.

Recent Changes to the H-1B Cap:

On January 31, 2019 the Department of Homeland Security (DHS) published a final rule to amend regulations governing the H-1B cap selection process. Some changes will take effect for H-1B cap petitions filed this April while other changes have been postponed until next year.

This year, USCIS will reverse the order in which it will conduct the lottery. Historically, USCIS has raffled off visa numbers for petitions filed under the Advanced Degree Cap first.  Those Advanced Degree petitions not selected under the Advanced Degree Cap were then raffled off again under the Regular Cap.

Under the new system, all petitions (for applicants possessing advanced U.S. degrees AND bachelor’s degrees) will first be counted against the Regular Cap (65,000 visas).  Then, those who are not selected but are eligible for Advanced Degree Cap would be raffled off for the additional 20,000 visas. The intended purpose of this change is to give preference to beneficiaries possessing U.S. advanced degrees.

For next year, the final rule introduces an electronic pre-registration requirement for petitioners seeking to file H-1B cap-subject petitions. USCIS expects to implement this pre-registration requirement for future cap seasons, once user testing has been completed.  It is unclear at this time how this pre-registration process will be structured but LTF will continue to closely monitor any developments in this area. 

What Does this Mean for Employers?

Due to the high demand for H-1B visas, employers should be prepared to file all H-1B cap petitions on April 1, 2019.  Working with immigration counsel to identify which foreign workers would benefit from an H-1B petition, assess eligibility, and take all appropriate steps to ensure timely preparation and filing of H-1B petitions is critical.

Potential H-1B beneficiaries might include: new hires; F-1 students working pursuant to Optional Practical Training (OPT) or STEM OPT; current employees who hold a different work visa such as the L-1 or TN; and, certain employees working pursuant to an Employment Authorization Document (EAD).  In assessing eligibility, employers should work with counsel to identify potential case issues in light of current H-1B adjudication trends, which have become more stringent.

Finally, employers should note that certain H-1B petitions are not subject to the annual cap.  A close assessment by qualified immigration counsel is necessary to determine whether the employer or H-1B worker is eligible for any available H-1B cap exemptions.

For more information regarding the H-1B visa category and H-1B cap procedures, please contact our team at info@ltf-law.com.