USCIS Completes Random Selection Process; 201,011 H-1B Cap-Subject Petitions Filed for FY2020

On April 11, 2019, the United States Citizenship Immigration Services (“USCIS”) announced that it received 201,011 H-1B petitions subject to the numerical limitation (“H-1B cap”), including petitions filed under the advanced degree exemption, for Fiscal Year 2020. For the seventh year in a row, the cap was reached during the first week of the H-1B cap filing season (the first week of April). The total number of cap-petitions filed this year slightly increased compared to last year, by approximately 5.6%.

The USCIS conducted the computer-generated “H-1B lottery,” on April 10, 2019 to randomly select petitions. Per the new H-1B regulation that went into effect on April 1, 2019, the USCIS reversed the lottery selection order for this year’s cap. Under this new process, the USCIS conducted the lottery for the H-1B regular cap first, including petitions eligible for the H-1B advanced degree exemption (Master’s cap), against the mandatory limit of 65,000 H-1B cap-subject visas. The USCIS then selected a number projected to reach the 20,000 Master’s cap from the remaining eligible petitions. Although USCIS has not provided information on how many of the 201,011 H-1B petitions were submitted under the advanced degree exemption, it is anticipated that this reversed selection order will result in a 16% increase of petitions filed under the Master’s cap being selected in the cap lottery. As announced in March 2019, the USCIS will begin adjudicating the first phase of premium processing for H-1B change of status cap petitions on May 20, 2019. Employers who did not concurrently file a request for premium processing with the H-1B change of status cap petition may interfile the request on or after May 20, 2019. For H-1B cap petitions requesting for consular notification, the second phase of premium processing will not become available until at least June 2019. Employers who filed H-1B consular notification petitions must therefore wait to interfile the premium processing requests until USCIS confirms the start date for these petitions. Premium processing requests interfiled before the start date of either phase will be rejected. The USCIS has begun issuing receipt notices for H-1B change of status cap petitions that were filed concurrently with a premium processing request and selected in the lottery. Based on our experience from previous years, we expect that it will take USCIS a few weeks to complete issuing electronic receipts notices for change of status cap petitions filed with premium processing requests. We also expect that paper receipt notices for petitions filed via regular processing will be issued by mid-May. USCIS will likely begin returning petitions that were not selected in the lottery in late June or early July. We will not know for certain whether a petition has been selected in the lottery until we receive either a receipt notice, or the returned petition. We will notify our clients immediately in either case. As a reminder, employers may continue to file H-1B petitions for individuals who are cap exempt (individuals who will be employed by institutions of higher education, nonprofit research organizations, or governmental research organizations). Also, foreign nationals who have previously been counted against the cap are generally not subject to this year’s cap, unless they have already reached the six-year limit in H-1B status and are ineligible for an extension beyond this limit under sections 104(c) or 106(a) of the American Competitiveness in the 21st Century Act (“AC21”). Please contact our office if you are unsure whether a particular candidate is subject to the cap.

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