H-1B Visa Program: Things for Employers to Keep in Mind this Cap Season

With the United States Citizenship and Immigration Services (“USCIS”) once again accepting H-1B cap petitions starting on April 1, 2019 of this year, it is important for employers to be aware of changes to H-1B policy, as well as ongoing issues confronted in the H-1B process with the Trump Administration.

Every year, USCIS accepts applications for H-1B visas, which allow U.S. employers to temporarily employ foreign workers in “Specialty Occupations”. There are 65,000 H-1B visas available annually to new applicants with at least a bachelor’s degree or equivalent, and an additional 20,000 H-1B visas available to individuals holding at least a U.S. Master’s Degree. In years that there are more applicants than visas available, USCIS will accept petitions during the first five business days of April, and conduct lotteries to determine which petitions may be reviewed for eligibility, commencing as of October 1. Last year, 109,098 petitions were filed in respect of the 85,000 available visas. With unemployment rates around 3.7% and a significant demand for a highly-skilled workforce, we expect to see a similar number of applications this year. So, in light of the continuing efforts to impose restrictions on H-1B Workers and employers, as well as proposed changes to the system, what should employers be aware of this H-1B season?

The Sooner Employers Commence the H-1B Process, the Better.

Filing approvable H-1B petitions in the first five business days of April takes considerable time, care, and effort. Employers and HR managers should be aware that the process should be started as soon as possible, to ensure that all the necessary documentation is available so the strongest possible petition may be filed.

USCIS is Introducing Changes to the Way in Which H-1B Petitions are Selected.

On January 30, 2019, USCIS announced it would reverse the order by which H-1B petitions are selected under the H-1B regular cap and the advanced degree exemption. In previous years, USCIS conducted the lottery for U.S. Master’s degrees first, and included those unsuccessful petitions in the lottery in the regular cap lottery conducted subsequently. USCIS estimates that the reversal in order will result in an increase of up to 16% in the number of selected petitions for H-1B beneficiaries with a Master’s Degree or higher from a U.S. institution of higher education. Employers should be aware that this will likely result in a reduction in the number of non-U.S. Master’s degree petitions being granted an H-1B Visa.

The same announcement introduces an electronic registration requirement whereby employers would pre-register online for H-1B petitions and be invited to file a petition on selection in the lottery. However, this rule is suspended for the FY 2020 H-1B cap filing, so the filing process for H-1B petitions will remain the same as previous years for now.

USCIS Will Likely Continue to Target Entry Level Positions and Broad Degree Requirements in Their Adjudication.

Requests for Evidence have been issued at a much higher rate under the current administration than in prior years. For H-1B petitions filed for Fiscal Year 2018, 68.9% received Requests for Evidence, compared to 17% of petitions filed the previous year. Many of these Requests for Evidence pertain to entry-level positions and degree requirements that are overly broad. Moving forward, employers should be prepared to demonstrate why a position qualifies as an entry-level position, and provide position requirements that are sufficiently narrow to satisfy the requirement that a specialty occupation requires at least a bachelor’s degree or equivalent in a specific specialty. Employers should also be aware that the beneficiary of an H-1B petition must possess the bachelor’s degree or equivalent at the time of the filing of the petition.

Beneficiaries of H-1B Petitions in F-1 Status Should Coordinate With Their Designated School Official (“DSO”) to Ensure They Can Benefit From “Cap Gap”.

Often, beneficiaries of H-1B petitions have been employed in post-graduation Optional Practical Training (“OPT”) with the employer at the time the H-1B Petition is filed. If the beneficiary’s OPT expires between filing and October 1, they may be eligible for an extension of their work authorization, which is known as “Cap Gap”. If a “Change of Status” H-1B Petition is filed on behalf of an individual on OPT, they should remain in close contact with their DSO throughout the adjudication process to ensure that they can avail themselves of the extended work authorization. The Student and Exchange Visitor Information System (“SEVIS”) recommends that an individual should not travel outside the U.S. during the time that the case is pending in order to avail themselves to the “Cap Gap”.

Employers Placing H-1B Workers at Third-Party Worksites Should Be Aware of Extreme Scrutiny and Requirements of Extensive Documentation.

Employers should be prepared to demonstrate in great detail in any filed petition that they maintain an employer-employee relationship with the H-1B beneficiary in situations where the employee will be placed at one or multiple third-party client worksites, and that there is specialty occupation work available for the beneficiary for the entirety of the requested period. Documentary evidence may include contracts, technical documentation, brochures, copies of detailed statements of work or work orders signed by authorized officials of end-client companies, among other things.

In the current climate of increased scrutiny of H-1B petitions, employers should work closely with immigration counsel to ensure that their H-1B petitions are timely filed and documented in a way to give them the best chance of securing international talent for their business.

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