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Immigration Alert: H-1B Visa Cap Filing Season begins 4/1/19

Posted by Lori Geisinger on January 15, 2019 at 12:34 PM

New H-1B visa petitions (including change of status petitions) can be filed with the U.S. Citizenship & Immigration Services (“USCIS”) beginning April 1, 2019 for an effective start date of October 1, 2019.  H-1B petitions are accepted on a "first-come-first-serve" basis, and the demand for H-1B visas is expected to be very high again this year. We therefore plan to file all cap-subject Petitions for USCIS receipt on April 1, 2019.  As preparation can be time-consuming, employers should begin the filing process as early as possible. You should contact Outside GC’s Immigration Team immediately if your company is seeking to hire H-1B cap-subject professional foreign workers, or to change the status of existing professional foreign workers, and has not already initiated the process with us.

As you may be aware, U.S. businesses use the USCIS H-1B visa program to employ temporary professional foreign workers in specialty occupations that require theoretical or technical expertise in specialty occupations.  The position must require at least a bachelor’s degree or higher in a specific field related to the occupation, the H-1B applicant must have at least the specific bachelor’s degree (or its equivalent), and the employer must conform to substantial record keeping requirements.  Over the past two years, USCIS has significantly increased its requests for additional evidence for selected petitions, which require special attention to the subject position’s qualification as an H-1B "specialty occupation."  Therefore, we must proactively and thoughtfully strategize our H-1B petitions to try to prevent requests for additional evidence. 

The current annual cap on the H-1B category is 65,000, and there are an additional 20,000 H-1B visas available for petitions filed on behalf of foreign national workers who have earned a U.S. master’s degree or higher.  Some petitions may be exempt from the H-1B cap, such as if the foreign national is already working in the U.S. in H-1B status for your company or for another cap-subject employer.  If the cap is reached within the first week of April, as is expected again this year, USCIS intends to use a computer-generated lottery process to select a sufficient number of petitions needed to meet the cap.  USCIS will reject and return the petitions not randomly selected with filing fees, and such cap-subject petitions cannot be re-filed until April 1, 2020 (for an effective start date of October 1, 2020). 

Please note:  Despite a recent congressional proposed rule for modifying the lottery process for H-1B cap-subject petitions, as of date, there have been no enacted changes to the lottery process for this year’s filing season. 

For more information, please contact Lori Geisinger at (781) 253-7150 (lgeisinger@outsidegc.com) or Jackie Mateo at (401) 258-0060 (jmateo@outsidegc.com).

Topics: Immigration

Outside GC is an innovative approach to legal services for growing and mature businesses. Companies who engage Outside GC fall into two main categories: (1) those without in-house counsel who need regular, on-going legal support but do not wish to hire a full-time in-house lawyer, and (2) those with in-house counsel who do not wish to add more full-time resources to their existing in-house staff. Contact us to speak to one of our on-demand attorneys.

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