FY 2020 H-1B Cap Season Begins: What Employers and Foreign Nationals Can Expect

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At a glance

• USCIS is expected to receive a very large number of H-1B cap cases between April 1 and April 5, the opening days of the FY 2020 filing season.
• USCIS will use a computerized lottery to select the petitions that will be processed to completion. This season, the agency will reverse the order of the regular and advanced-degree cap lotteries.
• Employers and foreign nationals should expect to wait several weeks or more to learn whether their cap petitions were selected for processing.

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H-1B cap filing season opens

USCIS today begins to accept H-1B cap petitions for employment in FY 2020. With a very large number of cap filings expected this year, the FY 2020 cap of 85,000 is likely to be exhausted quickly.

The first five business days of the cap filing season – April 1 through April 5 – are considered a single filing period. If, as anticipated, USCIS receives more than enough cap petitions to meet the quota during this period, it will stop accepting cap petitions on April 5 and will run computerized lotteries to choose which cases will be processed to completion.

Because of the operational challenges of high volume, it will take USCIS some time to perform initial intake, run the selection lotteries, and issue receipts. Employers and foreign nationals should expect to wait at least several weeks to learn whether their cap petitions were selected in the lotteries.

When will USCIS announce that the cap has been reached?

We expect USCIS to announce that the cap has been reached on Friday, April 5 or soon after.

Once the cap has been reached, USCIS will not accept any further cap-subject petitions until April 1, 2020, but employers can continue to file H-1B cases that are not subject to the cap. These include extensions, amended petitions, changes of employer, and concurrent filings for existing H-1B workers. Petitions sponsored by institutions of higher education and their related or affiliated nonprofit entities, government research institutions and nonprofit research institutions are exempt from the cap. However, a current H-1B employee may be subject to the cap if his or her previous H-1B was sponsored by a cap-exempt employer.

Availability of premium processing

Premium processing is available for FY 2020 H-1B cap cases in stages by case type, as follows:

• Concurrent filing for H-1B changes of status: Between April 1 and 5, 2019, employers filing H-1B cap changes of status may request premium processing concurrently with their petitions.
• Upgrades for H-1B changes of status: H-1B change of status petitioners who do not request premium processing concurrently with their cap filings will need to wait until May 20 to upgrade their cases to premium processing.
• Upgrades for all other H-1B cap filings: Employers filing H-1B cap cases that do not include a request to change status, including all requests for consular processing, will be required to wait until June 2019 at the earliest to upgrade to premium processing. No concurrent requests for premium processing will be accepted with these cases.

New this year: reversing the H-1B cap lotteries

After initial intake is completed, USCIS will run two selection lotteries. In a reversal of past practice, USCIS will run the standard H-1B cap lottery, followed by the advanced-degree lottery, pursuant to the new H-1B registration rule. The change is intended to increase the number of H-1B employees with U.S. advanced degrees, pursuant to President Trump’s “Buy American, Hire American” Executive Order. Cases not selected in the lotteries are rejected and returned with their filing fees.

In the first lottery, USCIS will select enough cases to meet the regular H-1B cap of 65,000. In the second lottery, USCIS will select enough cases to meet the cap exemption of 20,000 for beneficiaries who hold a U.S. advanced degree; any advanced-degree holder not selected in the first lottery will be entered in the second lottery.

What are the odds of selection in the cap?

Filing volume for FY 2020 is expected to far exceed the 85,000 quota. Last year, USCIS received 190,098 cap filings – an approximately 5 percent decrease from the prior year. Approximately 110,098 petitions – about 60 percent of all cap filings – did not win a quota number. Applicants had a 38 percent chance of selection in the standard lottery and a 21 percent chance in the advanced-degree lottery. This year, advanced-degree filings are expected to have higher odds of selection.

Receipting and adjudication

Employers who filed H-1B cap cases with a request to change status and a concurrent request for premium processing should get email filing receipts by May 20, though receipting could begin earlier. Employers whose regular-processed cases were selected in the lottery should begin to get filing receipts by late-May, if not earlier. Receipting could continue for several days or weeks after it begins.

Adjudicators should begin working on premium processed cases by May 20. USCIS should complete initial adjudication of premium cases by June 4. By this date, employers should receive an approval, request for evidence (RFE) or denial in their premium cases.

USCIS is expected to begin working on regular processed cases by early to mid-June. In past years, USCIS has typically aimed to finish initial adjudication by late August, though the FY 2019 adjudication period extended well into calendar 2019; premium processing was suspended for most of this time. 

RFEs may be issued at any time during the adjudication period. RFE rates have increased in the last several fiscal years, and prolonged processing times. If your organization receives an RFE, your Fragomen team may ask you and the petition beneficiary to provide additional information to prepare a response. Working promptly with your Fragomen team will help minimize delays and increase the odds of a case being decided in time for an October 1 H-1B employment start date.

Impact of H-1B cap processing on other case types

During the busy cap season, USCIS devotes significant resources to the processing of H-1B cap petitions. This may prolong the processing of other case types, including extensions of stay.  

Though USCIS makes an effort not to unduly delay the processing of non-cap cases, employers and foreign nationals should plan for the possibility that their extensions may take longer than usual.  As a reminder, H-1B, H-1B1, L-1, E-1/E-2, E-3, O, P, TN and certain other nonimmigrants are given an automatic 240-day extension of work authorization beyond the expiration of their current period of stay if an extension is filed on time. USCIS aims to complete extension processing within this timeframe, but if it does not, the foreign national’s employment authorization could be affected.

Fragomen will provide regular updates as FY 2020 H-1B cap processing continues.

This alert is for informational purpose only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.