New H-1B Petitions Subject to the Annual Cap to be Filed in April 2019
The U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions that are subject to the FY2020 annual quota (“the cap”) six months prior to the beginning of the fiscal year, on Monday, April 1st. As has been the case over the last six years, we expect that the cap will be reached during the first five business days of April, from April 1st to April 5th. Petitions filed during this period will likely be subject to the USCIS’ random selection process, known as the “cap lottery.” Petitions received after April 5th will very likely be rejected. In order to ensure that we are able to file your H-1B petitions during this short five-day filing “season,” and maximize each petition's chance in the lottery, we request that you confirm the name of each person for whom you wish to file a cap-subject H-1B petition, and provide all required information as soon as possible, and no later than March 8th, 2019. Please note that the USCIS has recently published a proposed rule that would implement a new electronic, pre-registration system for H-1B cap filings (please refer to our alert notifying our clients of this proposed change). Due to the technical and legal requirements that must be met before the pre-registration process can go into effect, as well as the current government shutdown which has impacted the government agency responsible for implementing new regulations, we believe that it is unlikely that the pre-registration process will be up and running prior to the start of the upcoming H-1B cap filing season. We are therefore preparing petitions to be filed under the current H-1B cap filing procedures. In the unlikely event that pre-registration process does take effect prior to the cap filing season, we will already have the necessary information to complete pre-registration for the H-1B cap candidates you have identified. Demand for H-1B Cap-Subject Petitions (FY2011 to FY2019) Under the congressionally mandated quota*, no more than 65,000 cap-subject H-1B visa petitions may be approved each fiscal year. A separate allotment of 20,000 H-1B visa numbers are available to foreign nationals who hold a Master's or other advanced degree from a U.S. institution of higher education. The graph below represents demand for new H-1Bs, and the length of the cap filing season over the last several years. For the sixth year in a row, the cap was reached during the first week of the H-1B cap filing season (the first week of April). However, the total number of cap-petitions filed last year continued to decrease compared to previous years — by about 4.5% compared to FY2018 and about 19.5% compared to FY2017 and FY2016. While the number of applications filed has decreased slightly, the demand for H-1B still exceeds the quota limitation. The odds of being selected in the Master’s cap lottery last year were approximately 65%, while the odds of being selected in the regular cap lottery were approximately 30-33%.
How This Affects You We are reaching out to all of our clients to review the immigration status of foreign national employees, and to help determine whether filing an H-1B cap petition for FY2020 would be advisable. As we may not have records for all of your foreign national workers or job candidates, we ask that you help us identify persons for whom sponsorship should be considered. We may have already contacted you about filing H-1B cap petitions for existing employees or candidates that have been identified to us.
Filing a cap-subject H-1B petition may be advisable for the following, depending on the person's specific situation:
Candidates abroad who have never held H-1B status
Candidates in the U.S. in another nonimmigrant status who have never held H-1B status
Candidates or employees in F-1 status
Current employees in TN, E-3, H-1B1, H-4 (with EAD), O-1, and L-1 statuses whom the company will sponsor for permanent residency
Please contact our office as soon as possible if you have employees for whom you would like to file an H-1B petition this cap season, or if you would like to further discuss whether sponsorship is advisable for a particular employee or candidate.
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