By Alan Perkins, Turid Owren, Melina LaMorticella, and Melany Savitt
H-1B season is underway! U.S. employers can file for new H-1B visas on behalf of prospective or existing employees beginning April 1, 2019. The anticipated window for filing new H-1B petitions under the USCIS H-1B quota for FY2020 is April 1 through 5, 2019. The quota provides for 65,000 regular H-1B visas for individuals with a bachelor's degree or equivalent, and 20,000 additional H-1B visas for individuals who have a master's degree (or higher) from an accredited U.S. university.
A final rule is currently pending publication with the government that would change certain aspects of H-1B processing. These changes primarily include implementing an electronic pre-registration system for cap subject petitions, as well as reversing the order of the 20,000 advanced degree preference category lottery (designed to statistically provide more visa numbers to U.S. advanced degree holders). At present, it is unknown when or to what extent changes will be made to the program for FY2020. We will provide another alert when the final rule is issued. Given the uncertainty as to when the final rule will be published and the timing of any potential changes, we recommend proceeding with H-1B evaluation and preparation as usual.
Forecasts for FY2020 Cap Season:
- We anticipate the issuance of post-filing Requests for Evidence to remain high, as has been the case under the Trump administration. This is particularly true for entry-level workers and certain occupations.
- Premium processing was only just made available for FY2019 H-1B cap petitions filed in April 2018. Many such petitions remain pending with USCIS. USCIS' current published processing time is an unprecedented 11 months. Given USCIS' practice over the past two years, we do not anticipate that premium processing will be made available for FY2020 H-1B cap filings at the outset.
- We expect the demand for H-1B visas to continue to be high this year and recommend that employers review upcoming hiring needs to determine as soon as possible if new H-1B petitions will need to be filed under the FY2020 quota for potential employment start dates of October 1, 2019.
In your review, we recommend considering the following:
- Determine whether the company employs any foreign nationals who will need (or may benefit from) a change to H-1B status. Examples include: F-1 and J-1 students, TN NAFTA professionals, L-1B specialized knowledge transferees, E-3 Australian specialty occupation professionals, and individuals with certain types of employment authorization documents (EADs).
- Although the Trump Administration has not yet issued proposed regulatory changes, we anticipate the Administration will issue rules to eliminate the STEM OPT EAD as well as H-4 EAD programs.
- Determine if there are any prospective employees the company wishes to employ beginning October 1, 2019 or later who require a new H-1B petition. Example: recruiting someone outside the United States who requires an H-1B visa to work for the company.
This client alert is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have any questions regarding this update, or for more information about this topic, please contact any of the attorneys in our Business Immigration Practice Group, or the attorney with whom you normally consult.
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