Starting Monday, April 1, the U.S. Citizenship and Immigration Services will begin accepting H-1B visa petition filings – subject to the annual cap – for the 2020 fiscal year, which begins October 1, 2019.
To maximize the chance that your petitions will be picked in this year’s anticipated lottery, we strongly recommend that H-1B visa petitions subject to the cap be filed on April 1 or no later than April 5 because it is likely that the cap will be reached during this first workweek of April. If you can, please contact us by February 15.
H-1B cap petitions apply to filings for so-called “new H-1Bs” – individuals or employers who are not cap-exempt as described below. Frequent beneficiaries of H-1B cap petitions are individuals who are employed under Optional Practical Training or STEM OPT. We suggest that you review your workforce for persons on OPT and consider filing an H-1B cap petition for them as soon as possible.
There is an annual limit on the number of visas that can be issued each fiscal year subject to the H-1B cap (primarily first-time H-1B beneficiaries). The caps are approximately 65,000 in the general category, plus 20,000 more for persons with U.S. master’s level or more-advanced degrees. In 2018, both caps were exceeded during the first week of filing – about 200,000 petitions were filed during this period – and the USCIS had to conduct a lottery to determine which petitions would be considered. We anticipate that the cap will be quickly met again this year, which we expect to result in another lottery.
Exceptions to the H-1B cap
The H-1B cap does not apply to the following:
- Persons who are or who have been in H-1B status during the last six years.
- Petitions for exempt organizations – institutions of higher education, or a related or affiliated non-profit entity, non-profit research organization, or governmental research organization.
- J-1 non-immigrant physicians who are changing status to H-1B and who have obtained waivers of the two-year return home residency requirement through the Conrad 30 Program (in which the physician agrees to work in a medically-underserved area).
Alternatives to the H-1B visa
If the H-1B option is not available, employers may want to consider these alternatives:
- As a prelude to filing for H-1B, optional practical training for foreign graduates of U.S. colleges and universities who may be eligible for a year of employment after USCIS approval of an individual’s Application for Employment Authorization (and for extensions of up to 24 months for students in Science, Technology, Engineering and Math fields).
- TN visas under the North American Free Trade Agreement, for Canadian and Mexican professionals.
- L-1 visas for intracompany transferees. If an employer has foreign operations (or decides to create them), this visa permits employees to transfer to the U.S.-affiliated company in a similar position. The employees must have worked abroad for the foreign parent, subsidiary, or affiliate continuously for at least one year during the preceding three years as an executive, manager, or in a specialized knowledge capacity.
- E visa classification for treaty traders and investors if the L-1 visa is not available.
- J-1 exchange visitor classification for business trainees, scholars, and others.
- O-1 visas for individuals with extraordinary ability. Although the standards vary somewhat depending on the type of employment, generally speaking the O-1 visa applies to those recognized as being at the top or near the top of their field of endeavor.