We welcome 2019 with the anticipation of yet another H-1B lottery filing season, this one filled with some major changes. Traditionally, the H-1B visa category has been utilized by U.S. companies to hire international talent and it is unlikely that will change given the low unemployment rate in the United States and the desire of U.S. corporations to remain competitive in the global workplace.
This year, the H-1B cap-subject filing period commences on Monday, April 1 and will run for the first five business days of April, assuming the H-1B cap of 85,000 petitions is reached during this period. U.S. Citizenship and Immigration Services (USCIS) has recently had new surprises in store for the immigration practitioner and U.S. companies filings for H-1B cap-subject visa petitions.
What is new this year?
Until this past year, it was unusual to receive challenges from the government concerning H-1B petitions where the education of the foreign national related to the job offered by the U.S. employer. These challenges, known as requests for evidence (RFE), and subsequent denials of H-1B petitions were more the exception than the rule. Now, it is much more common for USCIS to issue a lengthy, demanding and detailed RFE with the increased likelihood of
What issues might cause USCIS to issue an RFE? It has become the norm for USCIS to challenge H-1B petitions based upon the following scenarios:
New Proposed Rule - Electronic Pre-Registration
On December 3, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking changing how employers would file cap-subject H-1B petitions and how the H-1B lottery process would work going forward, as discussed in our recent alert, and a 30-day comment period ensued. However, a tweet issued by DHS later that evening, and subsequent to the issuance of the rule, indicated that the new electronic registration process would not likely be implemented in a timely manner and it reserved the right to implement the registration by the following H-1B cap filing season in April 2020. The proposed rule would change how employers file H-1B cap-subject petitions and how the lottery process would be conducted.
U.S. petitioning companies would first file for H-1B cap petition through an electronic registration process during a designated registration period, furnishing basic information concerning the company and the proposed foreign worker. If selected, the employer would then file the full H-1B submission. The proposed rule also reverses the H-1B selection process. USCIS indicated that it was favoring the 'master's cap' filings - that is, foreign nationals in possession of U.S. master's degrees from U.S. educational institutions.
Given that it is unlikely that USCIS will implement the new regulations and the registration process by April 2019, it is advisable for U.S. petitioning employers to prepare their H-1B submissions as they have in the past with the usual preparation process.
H-1B first-time sponsorship is generally available to:
Accordingly, if you or your company are considering the sponsorship of a foreign national for an H-1B in 2019, advance preparation has become crucial to be ready for the upcoming filing period. A careful review of the prospective applicant's qualifications and the position offered by the U.S. petitioning company is important to assure that the H-1B filing is approved by USCIS.
|Levine, Roxanne H. Partner||Partner||212.216.1122|