This memo is intended to provide information related to the H-1B “Cap” filing season that commences on April 1, 2019 for new H-1B filings that commence on October 1, 2019. These are known as Fiscal Year 2020 filings as the new government fiscal year for 2020 begins on October 1, 2019.
Please note: DHS has proposed two new changes to the H-1B Cap process. Given the timeframe required to approve of and implement these proposals it is unlikely they will be applied to the upcoming Cap season. Accordingly, our memo below continues to explain the process for Cap selection as it has unfolded for years. For more information related to these proposals which are likely implemented in 2019, they are available for review in the Federal Register publication issued on December 5, 2018.
The so called “Cap” we refer to applies to all NEW H-1B filings where the sponsored employee has NOT previously been counted against the Cap and where the employer is not somehow Cap-exempt. (Some employers or employment situations permit Cap exemption. If the applicant has previously held an H-1B status, even years ago, and as long as time remains within their six-year period of total stay, we can file a Cap-exempt H-1B petition.)
There are essentially two Caps. The first is the standard Cap for regular H-1B filings (referred to as the “Regular Cap”). There are only 65,000 Regular Cap H-1B filings permitted per fiscal year, and of this number, 6,800 available spaces have been reserved for citizens of Chile and Singapore – what is not used by these individuals in a given year is available for Regular Cap H-1B applicants the following year. The second Cap is technically a Cap exemption, but since it is limited in number and ultimately runs out each fiscal year, it in essence creates a separate Cap. This is in reference to an additional 20,000 H-1Bs set aside for individuals who graduate from a U.S. Master’s degree program that meets certain criteria (referred to as the “Master’s Cap”).
These two Caps operate in tandem. USCIS anticipates, based on past years, to deny a certain percentage of filings and, as a result, they may accept more cases for processing than the Caps permit (e.g. it may accept 80,000 cases for the 65,000 Regular Cap and 25,000 cases for the Master’s Cap). If USCIS determines that sufficient cases have been accepted to meet one of the Caps on a specific day, the Cap is deemed to be closed for the fiscal year. If more than enough cases are accepted to meet one of the Caps on a specific day, the cases received that day are subject to a lottery to determine which cases will be accepted for processing. Those cases not selected in the final lottery will be returned to the attorney of record. All cases received during the first five business days in April are considered to have the same priority toward the Cap (this year, cases received between April 1-5 will all be treated as one group). During the first five business days of filing, if a case that is filed under the Master’s Cap subject to a lottery is not randomly selected, the case would be placed in the Regular Cap for consideration. If the Regular Cap is not reached for the fiscal year, excess cases filed under the Master’s Cap will be receipted. However, if the Regular Cap is also hit for the fiscal year, excess Master’s Cap cases will go in the Regular Cap lottery. Given the demand for new H-1Bs for FY 2020, we fully anticipate that there will be a lottery again this year.
As all cases received by USCIS in the first five business days of filing (April 1 through April 5, 2019) are treated the same, and we can file H-1B Cap petitions as late as April 4th (so long as they arrive on April 5), please keep in mind that before we can file the H-1B Petition, we need to get an LCA certified from the DOL. LCA processing can take seven business days and, as a result, we will file our LCAs early to ensure they are approved in time to file our H-1B Cap Petitions (thus avoiding possible glitches that can happen when the DOL portal is overwhelmed and crashes because of the volume of requests).
We ask that you notify us of your request to file all H-1B petitions no later than March 11, 2019 so that we may file in a timely manner. In any event the sooner we know, the sooner we can process your application. We plan to file all H-1B cases on Friday, March 29, 2019 to be receipted by USCIS on Monday, April 1, 2019. However, we do understand that there may be circumstances that could prevent you from providing us confirmation of your need to file before March 11, 2019. Cases we receive later in the month we will also try to file on March 29th but, in any event, we will ensure they will be filed by April 4th unless we advise otherwise. Internally, we plan to file all LCAs (for known cases) on March 8th for a targeted March 18th, or earlier, approval. We will prioritize cases based on when we are notified and as long as we hear about a case prior to March 1st we plan to have all drafts out for signature by March 16th; cases that are commenced later will be drafted as soon as we can, with priority going to clients who have submitted all necessary supporting documents.
Being proactive will allow us to be ahead of schedule to accommodate last minute changes or delays, or to accommodate last minute new hires.
When USCIS receives these filings on Monday, April 1, 2019 it will assign them a number and perform initial processing. The same happens for Cap cases received the 2nd through 5th. A Cap case received on April 1st has as much of a chance of making it into the lottery as a Cap case received April 5th. We have no control over the lottery and whether a case makes it into the lottery. The process is entirely random. Further, filing with premium processing does not guarantee acceptance into the lottery despite what individuals may have heard from friends and online immigration forums.
In recent years, USCIS will announce that they will not hold the lottery until a certain date, usually a couple of weeks after the Cap closes, but in practice they have held the lottery within 2-3 business days of the end of filing, so most likely around April 9th or 10th, 2019. Within two weeks of the lottery, we begin receiving receipt notices for filings that made it into the Cap, so likely between April 19 – 26th we will start to hear of case acceptances. We should know the result of all cases filed by the end of July (unfortunately those cases that are not accepted are returned to counsel usually starting in early July). If accepted, the processing time for Cap cases varies widely from three to ten or more months. Given delays in processing Cap H-1Bs in recent years coupled with the suspension of Premium Processing, there is a potential that individuals who are authorized to work based on an F-1 OPT will run out of work authorization if the H-1B is not issued by October 1, 2019.
We will notify all clients of the status of their case and whether they made it into the lottery as soon as we have information. Should a particular client not make it into the lottery, we will discuss possible alternatives to remaining in the U.S. and continuing work authorization. Please note that if a case is returned because the H-1B Cap is met and the case was not selected in the lottery, the filing fee checks will be returned and we will refund those filing fees. A case that is rejected as a result of the lottery is not truly a “prior filing” as the case is never receipted by USCIS.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **