Getting Ready for a New H-1B Work Visa Season

2/1/2019 UPDATE: USCIS has finalized two changes to the H-1B process, one of which will take effect during this upcoming H-1B season.  Read here for more details.

Original Article Posted on 01/04/2019

A new year means a new H-1B season. The U.S. Department of Homeland Security, Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions on April 1st for new H-1B classifications subject to the annual H-1B cap. As in recent years, we expect that USCIS will receive enough applications to run out of H-1B visas as soon as the filing period opens. According to the information currently available, USCIS will again run a lottery system in order to select the “winning” H-1B petitions that will be considered on the merits.

Businesses seeking to employ a foreign national in H-1B status should start preparing the petition as soon as possible. Although USCIS begins accepting petitions on April 1st, there are other steps that must be done in advance, including a separate application with the U.S. Department of Labor. Therefore, careful planning and preparation are a must, in order to ensure that the H-1B petition is ready to be submitted to USCIS in a timely manner. In addition, there are some proposed changes currently being discussed and, if they are implemented for this upcoming season, employers must be prepared to change gears with little or no notice.

Are there any changes to the H-1B process this year?
There have been several changes to the H-1B process already implemented under the current administration, some more subtle than others. The following are the most notable:

The Buy American Hire American (BAHA) Executive Order signed by President Trump on April 18, 2017, has so far had the largest impact on how H-1B petitions are decided. BAHA directs USCIS to approve H-1B status only to the most-skilled or highest-paid beneficiaries. This has resulted in USCIS issuing an unprecedented number of Requests for Evidence and ultimate denial decisions for H-1B petitions that are otherwise approvable under the law. Countless employers have initiated the appeals process for these decisions, while others have taken USCIS to court to challenge the legality of the new policies. While these cases make their way through the slow judicial process, employers are advised to prepare their H-1B petitions in compliance with both the law and the new policies derived from BAHA.

Premium processing has also been suspended under the current administration for all cap-subject H-1B cases and even some cap-exempt ones. The premium processing suspension is not indefinite, but we expect it to continue for the upcoming H-1B season.

The Labor Condition Application process filed with the U.S. Department of Labor (DOL) recently saw a new application form version, effective November 19, 2018. The new form is accessible through the same DOL portal as before, but it does require more information than the earlier version. The new version places additional emphasis on jobs involving third-party placement, where the intending H-1B employee is expected to provide services to a client or end-user of the petitioning employer.

Are there any other changes being discussed?
Yes. At least two other notable proposed changes are currently being discussed, although they have not yet been implemented. One of them involves a change in how the lottery results are allocated. In prior years, the lottery was run to select the 20,000 graduate degree cap petitions first, and the base 65,000 cap last. The administration is proposing reversing the order, so as to draw the lottery toward the 65,000 cap first, and the 20,000 cap last. The government suggests that this order would give individuals with a U.S. Master’s or Ph.D. degree a higher chance of being selected.

The same proposal rule regarding the order of the lottery process also includes another change that would require employers filing cap-subject H-1B petitions to first go through an electronic registration process with USCIS during a predetermined registration period.

As of the date of this article, the electronic registration and the lottery order reversal provisions are only in the proposal stage and neither has been officially implemented. At this time, it is unclear as to whether either will be implemented before this next H-1B season starts, or whether they would be delayed for next year.

Is H-1B right for you?
H-1B is a non-immigrant visa classification used for individuals who seek employment in the U.S. in a specialty occupation or as a fashion model of distinguished merit and ability. To qualify as a specialty occupation, the intended job must require at least a bachelor’s degree or its equivalent, along with the theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include jobs in architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting law, theology, and the arts, among others.

In addition, an employer cannot use H-1B workers in a way that would negatively affect the wage or working conditions of U.S. workers employed in the same or a similar occupation. Therefore, an employer must pay the H-1B worker a wage that is at least equal to the prevailing wage rate established for that type of occupation in the applicable geographical area.

Timing of the H-1B petition.
Under current law, there are 65,000 H-1B visas available each year to individuals holding a bachelor degree or equivalent. An additional 20,000 H-1B visas are available to individuals who obtained a Master or Ph.D. degree from a U.S. university.

In recent years, USCIS reached the H-1B cap within the first week after the filing period started each April. Last year, USCIS received approximately 190,000 petitions. The prior year they received 199,000 petitions. The year before that, they received over 236,000 petitions and, the year before that, nearly 233,000 petitions. Consequently, USCIS subjected the petitions it received to a random, computer-generated selection process equivalent to a lottery. It is anticipated that this year will see the same trend.

Not all H-1B petitions are subject to the numerical cap.
Individuals who already have H-1B status and who are seeking to extend or amend their existing status, or transfer to a new employer, are not counted against the cap unless they have already spent six years in H-1B status. In addition, H-1B petitions filed by an employer that is an institution of higher education, a nonprofit entity related or affiliated with an institution of higher education, a nonprofit research organization or government research organization, among others, are also generally not counted against the cap. H-1B petitions for individuals with a pending permanent residence case are, in some case, also not counted against the cap.

How soon should you start preparing an H-1B petition?
Many of the documents needed in support of the H-1B petition are easily accessible, such as corporate records for the petitioning employer. However, there are other documents that must be obtained from third-party agencies. All of these steps take time and proper coordination, in order to ensure that all requisite pre-approvals are secured, and all documents assembled in time for USCIS to receive a complete application package as soon as the filing period opens on April 1st. Therefore, we recommend that interested employers and the intended H-1B employee(s) start preparing these documents right away.

If you are seeking H-1B clarification for the upcoming season, contact Attorney Raluca (Luca) Vais-Ottosen by email at rvo@dewittllp.com or by phone at (608) 252-9291.