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H-1B Cap FY2020 – It is that time of year again!

UPDATE: On September 4, 2019, U.S. Citizenship and Immigration Services (USCIS) published a proposed fee rule in the Federal Register relating to the online registration requirement that is anticipated to be in effect for the FY2021 H-1B cap season.  As indicated earlier, on January 31, 2019, the Department of Homeland Security (DHS) issued a final regulation requiring H-1B employers to submit an online registration of its H-1B cap case(s);  however, DHS has postponed the implementation of its online H-1B cap registration system until the FY2021 filing period.  USCIS will require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration submitted.  USCIS indicates that because it must expend resources to implement and maintain the H-1B registration system, and because USCIS operations are funded by fees collected for adjudication and naturalization services, DHS is requiring this fee to recover those costs.  The American Immigration Lawyers Association has recently requested that USCIS confirm, by September 15, 2019, whether or not use of the electronic registration system will be mandatory for the FY2021 H-1B cap filing season.  We will continue to provide updates as we receive notice from USCIS.

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UPDATE: On August 15, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it had returned all FY2020 H-1B Cap petitions not selected in its computer-generated random selection process (or its “lottery” system).   USCIS indicates that all non-selected cap cases should be returned by August 29, 2019.   We will continue to provide updates regarding the FY2020 H-1B cap as we receive notice from USCIS.

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UPDATE: On May 17, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it had completed its computer-generated random selection process (or its “lottery” system)  in connection with the FY2020 H-1B Cap.   As in prior years, USCIS will begin returning petitions not selected and will issue an announcement once it has completed the return of such petitions.  USCIS has indicated that it cannot provide a definite time frame for returning such petitions.   We will continue to provide updates regarding the FY2020 H-1B cap as we receive notice from USCIS.

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UPDATE: On April 11, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that yesterday, it conducted its computer-generated random selection process (or its “lottery” system)  in connection with the FY2020 H-1B Cap.    USCIS has determined that it has received a sufficient number of petitions to reach the “regular” cap for FY2020, as well as the “U.S. advanced degree” or “U.S. masters degree” cap for FY2020.   USCIS received 201,011 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption.   We will continue to provide updates regarding the FY2020 H-1B cap as we receive notice from USCIS.

 

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UPDATE: On April 5, 2019, U.S. Citizenship and Immigration Services (USCIS) announced  it has received a sufficient number of petitions to reach the “regular” cap for FY2020.  USCIS will next determine if it has received a sufficient number of petitions to reach the “U.S. advanced degree” or “U.S. masters degree” cap for FY2020.

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UPDATE: On March 19, 2019, U.S. Citizenship and Immigration Services (USCIS) announced a two-phased approach to Premium Processing for FY2020 H-1B Cap Petitions.  For FY2020 H-1B Cap Petitions requesting a “Change of Status,” Petitioners may request Premium Processing by concurrently filing the request with the H-1B Cap Petition filing.  However, USCIS will temporarily suspend Premium Processing for those cases selected or counted against the FY2020 H-1B Cap and begin Premium Processing for these petitions no later than May 20, 2019.  For all other FY2020 H-1B Cap Petitions (such as “Notify” petitions), Petitioners may not request Premium Processing concurrently with the H-1B Cap Petition filing.  Instead, USCIS will notify the public as to when Premium Processing may be available for those petitions, with USCIS indicating that it will not begin until at least June 2019.    Premium Processing for other H-1B petitions (such as “change of employer” and “amendment” and “extension” petitions) remains available.

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U.S. Citizenship and Immigration Services (CIS) will start accepting H-1B petitions for Fiscal Year (FY) 2020 (October 1, 2019 – September 30, 2020) on April 1, 2019, and it will not accept H-1B cap filings before such time.  Last year, the H-1B cap for the fiscal year was met as early as the first days of filing.     Once the FY2020 H-1B cap is met, CIS is expected to adopt a “random lottery” process to allocate the H-1B cap numbers.

On January 31, 2019, the Department of Homeland Security (DHS) issued a final regulation requiring H-1B employers to submit an online registration of its H-1B cap case(s);  however, DHS has postponed the implementation of its online H-1B cap registration system until the FY2021 filing period.

As a background, the H-1B category is designed for foreign professional workers holding a university degree, and it authorizes the foreign professional to work in the United States in a “specialty occupation.”  For most professional positions, the H-1B classification is the only visa category available.  The earliest H-1B employment start date will be October 1, 2019; CIS will start accepting H-1B petitions for FY2020 (October 1, 2019 – September 30, 2020) on April 1, 2019; and it will not accept H-1B cap filings before such time.  The numerical limitation (“cap”) on new H-1Bs for FY2020 is 65,000. Exemptions to the H-1B cap include:  H-1B amendment/extension petitions, H-1B transfer (change of employer) petitions, and H-1B petitions filed by higher educational institutions and related non-profit entities.   The special exemption from the H-1B cap for foreign nationals who possess a master’s degree or higher from a U.S. university should continue in FY2020.  This exemption is limited to 20,000 H-1Bs per fiscal year.   Again, H-1B amendment/extension petitions are not subject to the FY cap.

The same regulation referenced above also revised the lottery selection process for H-1B cap cases, effective for the FY2020 H-1B cap filings.  Specifically, DHS will include the U.S. “advanced degree” H-1B cap filings (master’s degree or higher from a U.S. university) in the general lottery which will be conducted first, and then DHS will conduct a second lottery of only the “advanced degree” H-1B cap filings for the separate “advanced degree” cap.   This change reverses the order in which DHS has conducted the lottery system in prior years.

Accordingly, we encourage employers to plan ahead for H-1B filings.   We will continue to provide updates regarding the FY2020 H-1B cap as we receive notice from CIS.