H-1B Cap Petitions Updates and Changes


by Diana Morales McFarland

dmoralesmcfarland@mcgrathnorth.com
(402) 341-30740

U.S. Citizenship and Immigration Services (USCIS) has just announced updates and changes to the FY 2020 H-1B cap season. The “cap season” is related to the number of H-1B petitions which will be accepted and processed in light of the limited number of 85,000 H-1B petitions for each government fiscal year. USCIS will begin accepting H-1B petitions for the FY 2020 cap on April 1, 2019, which is the first day that H-1B petitions for the upcoming fiscal year can be accepted. It is anticipated that no further petitions will be accepted after the first week in April.

USCIS will implement a two-phased approach to premium processing that will make the process more effective and efficient for employers. USCIS claims it will be in a better position to manage the premium processing (expedited processing) requests with the new system. Previously, premium processing was suspended for periods of time due to the overload of requests.

The first phase will include cap-subject H-1B petitions requesting a change of status at the time the petition is filed and the second phase will include all other cap-subject petitions which did not initially contain a request for premium processing. Starting April 1st, cap-subject H-1B petitioners requesting a change of status (i.e. F-1 student to H-1B) on their petition, may request premium processing by concurrently filing a premium processing request. USCIS will actually begin premium processing for these petitions no later than May 20, 2019. Premium processing for all other cap-subject H-1B petitions, which did not contain a request for premium processing at the time of filing, will not begin until at least June 2019.  Cap-subject petitioners not requesting a change of status may not submit their premium processing request concurrently with their H-1B petition.

USCIS also announced the new “H-1B Employer Data Hub” that will be available on uscis.gov on April 1, 2019. The new data hub will make information more accessible to the public by allowing the public to search for H-1B petitioners by fiscal year, NAICS industry code, company name, city, state, or zip code.

Finally, in January 2019, the Department of Homeland Security (DHS) announced a rule that reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption. USCIS will first select H-1B petitions filed on behalf of all beneficiaries, including those eligible for the advanced degree H-1B petitions. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption (20,000 of the 85,000). USCIS’ intent in changing the order is to increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education. USCIS will notify the public when the H-1B numerical allocations have been met.

Immigration laws are changing on a regular basis. If the operation of your business requires that you consider seeking work authorization for non U.S. Citizen employees with at least a bachelor’s degree or higher, or who otherwise are a skilled employee, as defined by the regulations, please contact Diana at 402-633-9563 for information and advice.

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