The H-1B Cap is Upon Us: Helpful Tips to Prepare for Fiscal Year 2020 H-1B Cap

It is early days of 2019. Time to refresh; time to innovate; time to reconnect and for those of us in the business immigration world – time for the H-1B cap. Ask any business immigration lawyer and they will tell you that Q1 of any given year is dominated by all things H-1B cap.

The H-1B is a highly limited and coveted visa category that allows employers in the U.S. to hire talented foreign national employees in specialty occupations. The law requires that the individual has a related degree that is necessary to perform the duties of the offered position.  Additionally, the employer must ensure the employee is paid at least the prevailing wage appropriate to the position and metropolitan occupation. 

Each fiscal year (October 1 to September 30), a set amount of H-1B visa numbers are made available. An employer may file a petition 6 months in advance of the start of the fiscal year.  Due to high H-1B demand by employers in recent history, the number of filings the first week of filing exceeds the numbers available and results in a lottery conducted by the government to determine which individuals could be granted H-1B status. This creates a frenzy of filings in early April.

 To ensure the best chance of success when filing a H-1B cap case this year or in future years, it may be important to consider the below tips.  

1. Review hiring guidelines: Establish minimum hiring standards for foreign national employees.  Know how your talent organization is hiring and why a foreign worker was ultimately chosen for the role. If the employee does not win a H-1B number, how does this affect the business organization?  Go into the situation eyes wide open!

• H-1B employees who have a U.S. master’s degree or higher have a higher percentage chance of winning a number in the lottery.  As of January 2019, U. S. Citizenship and Immigration Services (USCIS) reversed the order in which it conducts the lottery to give an advantage to those with U.S. Master’s degrees or higher.
• Does the employee’s background / degree, match the position in which you will place him/her?  If not, it is necessary to investigate further.
• Know up front if there are other visa category options (such as the TN or O-1) for an employee if the H-1B fails.

2. Carefully develop specialty occupation evidence: USCIS has focused on specialty occupation as a main issue in the past two years. It is critical to establish the proper nexus between the employee’s background / degree and the H-1B role.

• Prepare enough evidence to show why this employee meets the defined legal standard
• The employee must have a degree relevant to the role or you should seek an evaluation from a proper vendor to see if their experience and education equates to the proper background.

3. Start filing for the H-1B as soon as possible: It is important to maximize the attempts at winning a H-1B lottery number so the employee may remain working in the U.S.  Don’t wait to attempt the H-1B until the employee is running out of work authorization.

• Graduates of U.S. universities obtain work authorization (an Employment Authorization Document – EAD card) to work in their area of study for a year.  If their degree is a Science, Engineering, Math of Technology degree, they may extend their EAD for a total of 3 years.
• Review employees now who may max out of their stay in other visa categories such as the L-1.  Will the employee require a H-1B to keep them work authorized beyond the end of their current visa allowable stay?  Consider attempting the H-1B for them now to avoid termination or costly off-shoring.

4. Employees at third party (client) or multiple sites/ locations: USCIS has also focused on issues related to employee location. This is a key concern of the current administration.

• Third party / Client location:  Be prepared to show that your company is the true employer of the employee.  USCIS wants to see that there is an employer/employee relationship.  The main emphasis needs to be that you have control over your employee and that your employee is at the third-party site to further your business.  The government is concerned about labor for hire in the H-1B context. 
• Working at multiple company sites:  If your employee will work out of more than one of your office locations, be prepared with an itinerary to show what the employee will be doing when and where.  It is not enough to know that the employee will need to work out of both locations from time to time.

5. Wages are essential in the H-1B filing: The rules require that the employee be paid the prevailing wage for the metropolitan area or the actual wage, whichever is higher. 

• Prevailing wage is determined based on minimum education / experience requirements; metropolitan location; and position.  Research the offered wage against prevailing wage early.
• Be prepared to use an alternative wage survey that meets Department of Labor guidelines if the employee will not meet the government prevailing wage.
• Use an already issued prevailing wage determination that matches the minimum requirements of the role to create safe harbor.
• If there is a large mismatch between employee’s wages and the employee’s wages, this may be an indicator that the minimum requirements for the role are not accurate. Assess whether or not you have defined the role properly. 

The H-1B cap is all about advanced planning and strategy combined with the luck of winning the lottery. Being prepared is critical to success if your employee is one of the fortunate ones selected for processing. Best of luck in the H-1B lottery!