This holiday season seems a little strange to be fair – typically by now we have a few holdouts from the previous H-1B lottery, but this year fully 30% of our H-1B cases filed against the H-1B Cap have yet to be adjudicated. The good news is so far none of our cases have been denied, the bad news of course is that this is taking much longer than ever expected. The underlying agreement between Petitioner and the government is that cases are filed six months in advance to allow USCIS sufficient time to process the approval and for the new hire to get their visa and enter the U.S. ready to start work on October 1st. However, this is an impossibility when more than 50% of our firm’s Cap cases remained unadjudicated on October 1st. So while we start to prepare for next year’s H-1B season, we still have many cases we are monitoring and responding to.
As like all prior H-1B seasons we have been tracking the needs of our clients since last year and we will reach out to all of you around Mid-January to discuss your filing needs. Below we talk about new proposals to streamline the H-1B Cap season that we anticipate will be in place for the winter 2020 Cap season. Should you have any questions about the H-1B Cap, please don’t hesitate to contact your attorney or legal writer to get additional information.
On November 30, 2018, the United States, Mexico, and Canada signed the new trilateral trade deal at the G20 summit in Buenos Aires. As we previously reported, the newly signed treaty will have no affect on TN visas. The new treaty uses updated headings but the list of professions recognized under the treaty remains unchanged (although a prior agreed to clarification was incorporated into the treaty notes). The agreement is set to go into effect in 2020, sunsetting 16 years after going into effect, and subject to review every six years. Congress must first ratify the agreement before it can be binding. Until then, the existing NAFTA text remains in force.
As many are aware, H-1B season will soon be upon us. In advance of the FY 2020 H-1B Cap Season (which requires employers file Cap Subject H-1Bs in the first week of April 2019 for H-1Bs that are meant to start on October 1, 2019). On December 3, 2018, USCIS proposed two regulatory changes intended to be in place in advance of this coming lottery season [note: many professional organizations have already reviewed and publicly commented that the timetable to implement these changes is likely insufficient to incorporate them in this upcoming Cap season; for this reason we are proceeding as if these changes were not adopted until the government clearly implements this new process].
The first regulatory change proposal relates to the way that H-1B petitions are counted against the annual cap. Currently, the lottery process runs in two steps: the first lottery involves all U.S. advanced degree holders who qualify for the limited 20,000 cap-exempt petitions, and; the second lottery involves all remaining petitions, including those unsuccessful in the first lottery. The plan is to flip the process, so the regular Cap runs first, and then all those petitions remaining will be considered for the U.S. advanced degree Cap exemption, provided they meet the requirements. By flipping the order DHS hopes to increase the percentage of U.S. advanced degree-holders qualifying under the cap selection process. The short answer is DHS is correct, by giving U.S. advanced degree workers equal odds in the first lottery there is a general expectation that a certain percentage will be selected, and that the remaining population of U.S. advanced degree applications will then have a better chance of selection in the 20,000 cap. The unfortunate outcome for employers who recruit internationally is that getting accepted into the Cap will become more difficult. Although it sounds beneficial, this translates into a U.S. master’s degree applicant that has recently graduated having a higher chance of getting an H-1B than someone who has a PhD from a foreign university who may be better qualified with years of experience.
The second regulatory change is the more complex in nature. It would require that petitioning companies first register beneficiaries through an approved registration system. There would be a period in advance of the April 1st filing deadline which would have a cut-off for registration. Once registrations are submitted they cannot be changed, and if a registration is selected the employer is expected to file an H-1B petition within 60 days.
The comment period is currently open on both proposed changes. As previously mentioned, it is unlikely DHS has the capacity to implement these changes without additional time, and frankly if it were to somehow do this, it will happen very late into the H-1B season – by the time we would likely see publication of a final rule, we’d be within a few weeks of the normal H-1B filing deadline. For this reason, employers and attorneys alike can’t afford to wait and see – if there are no changes to the Cap process this season and firms plan for the change, such firms would not be in a position to suddenly prepare and file all necessary H-1B filings by the deadline. For this reason, our firm, like many others is treating this year like any other, while keeping an eye open on the unlikely possibility that DHS moves quicker than ever before. Please reach out to your attorney if you have questions about the H-1B lottery process this year.
We’ve had this drill before – unfortunately all to often in the past few years! There is the possibility that if an agreement is not reached before Congress recesses for the holiday season that our government will run out of money and not be in a position to pay staff. At this point this is just a possibility – please of course pay attention to news related to this topic if you are seeking a visa or filing an application in the coming few weeks. Typically the hardest hit agency we deal with is Department of Labor, which ceases to operate when a shutdown occurs. The borders and USCIS still function, and Consular Services operate, albeit on a reduced staffing situation. We will be sure to report on the likely impact of a shutdown if one is likely to be triggered.
The January 2019 visa bulletin has made little progress from December 2018 in terms of final action dates. The priority date for EB-1 Worldwide has moved to October 01, 2017, while EB-2 and EB-3 Worldwide are current. EB-1 China and EB-1 India moved to December 15, 2016, and EB-1 Philippines also moved to October 01, 2017. EB-2 China has moved July 01, 2015, while EB-2 India has moved to April 01, 2009; EB-2 Philippines is current. EB-3 China has advanced to June 08, 2015, and EB-3 India has advanced to March 01, 2009, and EB-3 for the Philippines has remained June 15, 2017.
** 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 **