Employers seeking to sponsor H-1B workers for fiscal year 2020 can begin filing petitions on April 1, 2019, for a start date of October 1, 2019. The H-1B visa is used by businesses that want to employ foreign nationals to work in a specialty occupation requiring theoretical or technical expertise. For FY 2020, cases will be considered accepted on the date the U.S. Citizenship and Immigration Services (USCIS) takes possession of the petition, not on the date the petition was postmarked.
There is an annual limit of 65,000 visas available for H-1B petitions, with an additional 20,000 reserved for individuals who have earned a U.S. master’s degree or higher. For FY 2019, USCIS received over 190,000 petitions and accepted petitions for the first five business days before announcing that it had received a sufficient number of H-1B petitions and that the cap was closed. This year, an even greater number of petitions is expected. We therefore encourage all employers to file H-1B petitions on Friday, March 29, 2019, for delivery on Monday, April 1, 2019, although USCIS will accept applications until Friday, April 5, 2019.
If USCIS receives more than enough petitions to meet the standard and advanced-degree quotas during the first five business days of the filing season (as it did last year), USCIS will conduct a computerized lottery to choose cases for processing. In past years, the lottery had first focused on selecting advanced-degree petitions to fill the cap exemption quota of 20,000. Then, remaining unselected advanced-degree cases were put into a second lottery to select enough petitions to meet the standard quota of 65,000. This year, USCIS has reversed the lottery selection process. On January 30, 2019, the United States Department of Homeland Security announced a new final rule that is designed to give preference to advanced-degree petitions.
Under the new rule, which becomes effective April 1, 2019, all petitions (including those eligible for the advanced-degree exemption quota) will be first subject to a computerized lottery to select a sufficient number of petitions to fill the standard quota of 65,000. Then, remaining unselected advanced-degree cases will be entered into a second lottery, comprised of advanced-degree petitions only, to fill the cap exemption quota of 20,000. USCIS expects that this change will result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
Key Filing Deadlines
To file an H-1B visa petition, an employer must have a certified Labor Condition Application (LCA) from the Department of Labor (DOL). Currently, the DOL is taking seven calendar days to certify an LCA. However, regulations permit the DOL to take up to 10 business days. In addition, if your company has not filed an LCA since 2008, it is likely your company’s Federal Employer Identification Number has not been registered and verified by the DOL’s Office of Foreign Labor Certification. If this is the case, the company will first need to register its Federal Employer Identification Number through a verification process that takes an additional three business days. Notably, in previous years, the high usage rate of the online LCA system towards the end of March has caused the website server to shut down or function extremely slowly. As such, early filings are imperative to avoid technical delays.
Moreover, if your prospective H-1B employee does not have a U.S. degree, a degree equivalency evaluation must be conducted by an accredited credential evaluation company. Although most companies offer a 24-hour turnaround for credential evaluations at this time of year, this turnaround time cannot be guaranteed due to increasing demand levels as the H-1B cap filing deadline approaches.
If your organization is planning to petition for H-1B employment in FY 2020, it is advisable to contact counsel immediately to discuss the process.