With H-1B Cap Season Just Around the Corner, Preparation is Key
On April 2nd, 2018, USCIS will begin accepting new H-1B petitions subject to the cap for Fiscal Year 2019 (FY2019). If you plan to hire a professional, foreign worker, preparation for the H-1B visa process should begin now. Based on last year’s numbers where USCIS received 199,000 H-1B petitions during the filing period, the cap will most certainly be reached in the first week of April 2018. If you miss the opportunity to file a new H-1B petition this year, you will not have the opportunity to file until April 2019.
It is important to prepare new H-1B petitions early. Doing so will allow enough time to prepare detailed, clean petitions and eliminate any last minute oversight. Anything less, especially under the Trump administration, can lead to unwanted Request for Evidence (RFEs) and possible denials.
U.S. employers use the H-1B visa program to temporarily employ foreign workers in specialty occupations. The job must meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:
- Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
- Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
The current annual cap (from the period starting October 1st and ending on September 30th) as set by Congress for new H-1B petitions is 65,000 (regular cap). An advanced degree exemption is available for the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher (master’s cap).
Please note, you should only apply under the master’s cap where the U.S. educational institution satisfies the master’s cap requirements. Therefore, it is important to discuss this issue with a qualified immigration attorney before submitting your petition under the master’s cap.
How does the current lottery system work?
If the cap is reached within the first 5 days of the new filing season, USCIS will stop accepting petitions and a lottery system will be implemented for random selection. The lottery system will first be conducted for the advanced degree exemption petitions. Once that has been reached, any petitions filed and not selected for beneficiaries with a U.S. master’s degree or higher will count against the regular cap.
The same lottery system will then be used for the regular cap. Note, if a petition is filed and not selected in the lottery, it will be returned with all government filing fees. If your petition is selected in the lottery, it will be reviewed by a USCIS Officer. An Officer can send an approval (yay!), an RFE, or a denial notice.
What to expect this H-1B cap season?
USCIS has confirmed that no procedural changes will take place for the H-1B FY2019 Cap. This means that the lottery system will be implemented as it has been in past years, and a pre-registration system that was discussed in the Fall 2017 regulatory agenda will not be included.
Further, USCIS announced that Premium Processing for H-1B cap subject petitions will be delayed. This means that Premium Processing may still be requested for cap subject petitions, but the 15 day Premium Processing clock will not begin until a later specified date.
There will be a high level of scrutiny when adjudicating H-1B petitions, especially when considering whether the position qualifies as a specialty occupation. We will likely see new issues arise aside from those that popped up last year (Level I wage for example). You should pay close attention when choosing the Standard Occupational Classification (SOC) code for the position and the corresponding wage level. Of equal importance is the job description provided for the position. Providing a detailed and thorough job description will help lead to a successful outcome. When determining the SOC code and crafting your job description, it is important to first review the occupational outlook handbook and O*NET to ensure that the position details qualify as a specialty occupation.
These may appear to be simple issues, but without a proper action plan, you risk receiving difficult RFEs and even worse, possible denials. Just to give some perspective, Reuters reported that between January 01, 2017 and August 31, 2017, USCIS issued 85,000 H-1B RFEs, which accounts for a 45% increase compared to the same time period in 2016. This isn’t meant to scare you, but to encourage early preparation that will help lead to an easier road to approval.
Again, the annual H-1B numerical cap is expected to be reached in the first week of April. Therefore, employers who have plans to use the H-1B program are recommended to begin the filing process as early as possible. Individuals should also begin gathering all required documentation needed in order for the employer to timely file on your behalf.
It is always important to discuss these complex issues with a qualified immigration attorney before beginning your immigration journey.
Direct: 713-457-5703; Email: Krystal@rnlawgroup.com