Employers should assess their need for cap-subject H-1B visas and begin preparation of H-1B petitions now, in advance of the filing receipt deadline for the first week of April, April 1-5.

In less than three months, U.S. Citizenship & Immigration Services (CIS) will begin accepting new H-1B petitions filed under the Fiscal Year 2020 (October 1, 2019 through September 30, 2020) H-1B quota. No more than 85,000 new H-1B visa numbers, which include 20,000 U.S. Master’s exempt numbers, are available for the fiscal year for petitions requiring an H-1B number. Some petitioners such as institutions of higher education and affiliated non-profit organizations are exempt from the H-1B quota and may file H-1B petitions without regard to the annual quota.

The CIS begins accepting H-1B petitions received on April 1st of every year except when it falls on a weekend or holiday. The annual quota will likely be reached in the first week that new petitions are accepted, and a lottery will be applied to select petitions that will be allocated an H-1B number. Due to the volume of filings anticipated, employers should initiate all new H-1B petitions now if possible or by early February for filing and receipt by CIS in the first week of April and no later than Friday, April 5.

File April 1st for Qualifying F-1 Students, TN Professionals, L-1B Specialized Knowledge Professionals and Certain EAD Card Holders

Employers should evaluate their current workforce and consider proceeding now with H-1B petitions for qualifying F-1 students and TN and L-1B professionals who may be employed long-term with the company. If “green card” sponsorship will be pursued, the H-1B visa allows for continued extensions until the permanent residency is approved. As more petitions are expected than visa numbers are available, employers should anticipate that the CIS will implement a “lottery” to award the visa numbers. Petitions that do not receive an H-1B visa number this year may be filed again next year. By filing in the earliest year possible, employers can increase their opportunities for getting H-1B visa numbers for existing employees. Employers should consider H-1B petitions for their employees even if their employees have several months or even multiple years remaining of their current employment eligibility.

Employees who are work-authorized based on an L-2, H-4, or E spouse EAD card are also potential candidates for filing an H-1B petition. One of the advantages of filing an H-1B petition for these employees is to avoid possible disruption in their employment eligibility in the event that their L-1, H-1B, or E spouse loses his or her job or otherwise fails to maintain valid nonimmigrant status, either of which could disrupt employment eligibility for the spouse who is dependent on an L-2, H-4, or E visa based EAD card. Because the Trump Administration is rumored to be considering elimination of the H-4 EAD benefit, qualifying H-4 spouses currently working pursuant to an H-4 EAD card should seek sponsorship by their employers for an H-1B petition.

Proposed DHS Rule to Require Petitioners to Register Electronically

Outlined in greater detail in Foster’s December Blog post, Proposed Change to H-1B Lottery: A Forecast for Unintended Consequences, the Department of Homeland Security (DHS) published a notice of proposed rulemaking on December 3, 2018, that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with CIS during a designated registration period. CIS said the proposed rule would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption, with the goal of increasing the number of beneficiaries with master’s or higher degrees from U.S. institutions of higher education to be selected for H-1B cap numbers and introducing “a more meritorious selection of beneficiaries.”

It is unclear, however, if the rule will be finalized and implemented in time for the start of the H-1B filing season on April 1. On January 11, 2019, CIS sent a final version of this proposed regulation to The White House Office of Management and Budget (OMB) for review. Following OMB review, a final rule must be published in the Federal Register in order for the rule to become effective.

Initiate New Cases Now

To initiate a new H-1B petition for April 1st filing, contact your Foster immigration attorney. Your Foster attorney will assist you in evaluating a candidate’s eligibility and will be able to provide you with case-specific strategies and document checklists.. For additional information and answers to Frequently Asked Questions (FAQ), please visit the Foster website at www.fosterglobal.com.