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Immigration Bulletin – USCIS Announces FY 2020 H-1B Visa Cap Reached

APRIL 8, 2019 BULLETIN TO ALL IMMIGRATION CLIENTS

On April 5th, the U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory quota of 65,000 standard H-1B petitions (i.e., the “Regular Cap”). USCIS will next determine whether the agency has received a sufficient number of petitions to meet the 20,000 applications for the U.S. advanced degree exemption (i.e., the “U.S. Master’s Cap”). USCIS has yet to provide the total number of H-1B petitions received during the filing period which began April 1, 2019 and ended April 5, 2019.

Because USCIS received more than enough cap petitions to meet the “Regular Cap” quota during the filing period, USCIS will run a computerized lottery to choose the cases that will be processed to completion. The first lottery will select enough cases to meet the standard quota of 65,000. If the USCIS determines that the 20,000 “U.S. Master’s Cap” has also been reached, it will then run a second lottery to select enough cases to fill the additional 20,000 petitions to meet the U.S. advanced degree exemption, for a total number of 85,000 H-1B cap-subject visa petitions (as in previous years).

Once USCIS runs the cap lotteries, it will begin to issue receipts to employers whose cases are selected. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with the filing fees. USCIS has not yet provided a time frame when it will begin to issue receipt notices and/or return unselected petitions. Please remember that there may be other visa alternatives to filing an H-1B petition. As we have done in the past when a case is not selected in the lottery, we will work with you to identify any alternatives that will permit the affected employee to legally remain employed or begin employment in the United States.

Please also remember that the USCIS has resumed Premium Processing for FY 2020 cap-subject H-1B petitions, which will be conducted in two phases. USCIS will begin premium processing for concurrently filed (on April 1, 2019) FY 2020 cap-subject H-1B petitioners requesting a change of status no later than May 20, 2019, and will notify the public as to exactly when premium processing will begin for these petitions. If a petitioner did not file Form I-907 concurrently with an FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907 (i.e., on or after May 20, 2019).

Premium processing for all other FY 2020 cap-subject H-1B petitions will not begin until at least June 2019. These petitioners will be eligible to upgrade to premium processing by filing Form I-907 once premium processing begins for this group in June.

Please note that the cap applies only to petitions for new H-1B visas, including petitions to change/convert from F-1 or L-1 to H-1B status. The following are not subject to the cap, i.e., the USCIS will continue to accept H-1B petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers (unless the worker seeks to change from “cap-exempt” H-1B employment to non-cap-exempt H-1B employment); and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

The USCIS will also continue to accept petitions for new H-1B employment where the petitioner/employer is not subject to the annual cap. To qualify as a “cap exempt” petitioner, the employer must be: (i) an institution of higher education or a related or affiliated nonprofit entity; (ii) a nonprofit research organization affiliated with an academic institution; or (iii) a governmental research organization.

Lastly, please remember that petitioners may resubmit first-time employment H-1B petitions when H-1B visas become available for the 2021 fiscal year (FY 2021). The earliest date a petitioner may file a petition requesting FY 2021 H-1B employment (with an employment start date of October 1, 2021) is April 1, 2020.

Please contact any member of the Cohen & Grigsby Immigration Department if you have any questions regarding the above at 412.297.4900. To receive future bulletins and news alerts, please send an e-mail to bulletins@cohenlaw.com.

Copyright © 2019 by Cohen & Grigsby, P.C. (No claim to original U.S. Governmental material.)

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