USCIS will accept H-1B petitions on April 1, 2019 for the Fiscal Year (FY) 2020 H-1B quota cases. If the petition is approved the H-1B beneficiary can start working on October 1, 2019 or earlier if he/she is eligible for H-1B cap-gap. It is very important to start the H-1B sponsorship process well in advance to make sure all the petitions are timely prepared and filed.
It is important that a complete and strong petition is prepared in light of increased RFEs and denial rates by USCIS for poorly prepared petitions. You need attorneys who are experienced, thorough, pay close attention to detail, have deep knowledge about industries, know about the persuasive evidence which USCIS often agrees, stay up to date on recent trends, and have great success rates.
On Jan 31, 2019 USCIS published the final rule on Cap-subject H-1B visa program which changes how the petitions are selected in lottery and requires a pre-registration. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it introduces an electronic pre-registration requirement for petitioners seeking to file H-1B cap-subject petitions BUT electronic pre-registration will be suspended for 2019 (FY 2020) quota cases.
FY 2020 H-1B Cap and Cap Amounts
Last year, USCIS received a sufficient number of H-1B petitions to reach the statutory cap for FY 2019 in first week of April, 2018. After the numerical cap is reached, USCIS will reject petitions subject to the H-1B. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas are set aside each fiscal year for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B specialty occupation workers for the next fiscal year.
There is a high likelihood that the FY 2020 H-1B quota might be reached much earlier than last year. It should be noted that in the past the numerical quota was reached in a short period of time, sometimes within a week.Therefore, it is better to plan everything in advance so that all H-1B petition will be filed in a timely manner. Most importantly, USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B extensions for individuals who have already been counted against the cap within the last six years, etc.), DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2020.
Please note the following tips to ensure that a strong petition is filed timely:
- Ready all supporting documents (letters of support, necessary filing fees, right type of end-client letter, right Work/Purchase/Task Order, etc.).
- Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about seven business days for the DOL to certify an LCA, so the LCA should also be filed as soon as possible. We have seen USCIS challenge the certified LCA as being related to the position by raising the question about the Prevailing Wage (PW) and occupation level (I, II, III or IV) selected in LCA. USCIS typically relies on DOL's ETA Prevailing Wage Determination Policy Guidance of November 2009 in challenging the LCA. Therefore, it is important that LCA is properly prepared and submitted.
- Evidence of Beneficiary’s Educational Qualifications: A copy of beneficiary’s final transcripts. Petition has to include evidence of the beneficiary’s educational degree at the time of filing. If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
- A copy of the beneficiary’s transcript and a letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).
- If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that.
- If the beneficiary has a foreign academic degree and professional experience letters then we may need to obtain a credential evaluation, a process that can also take a few days.
- Adequate documentation to show that the position is a specialty occupation work. A mere re-writing legal provision will not suffice, a detail explanation with relevant evidence should be provided in the petition.
- Adequate documentation to show that there is a specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the time requested in the petition. (See our detailed article regarding USCIS memo about third-party placement)
Can I file H-1B petition if it was denied or currently in RFE or Motions/Appeal Stage?
Certainly yes. However, we would advise employer and the beneficiary to be extra careful about the same mistakes or oversights and do not repeat those in the petition this year. It is advisable to seek second legal opinion from other outside counsel if the employer wants to ensure a cross-check and an additional quality control. Often time a minor oversight about various aspects of the petition, be it job title, occupational code, job duties, educational requirements, requirements of end-client, status violation, could trigger RFE and subsequently a denial if the RFE is not responded
Do consider reaching our law office if you like us to do the petition or for a second-opinion or for a review of the prepared LCA and the petition drafted by your other outside counsel or by your in-house legal team. A timely remedial action could potentially avoid the RFE or a potential denial.
(last updated January 31, 2019)