Preparing for the FY 2020 H-1B Cap Amid Potential Changes

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At a glance

• Employers should prepare in advance for the upcoming H-1B cap season, notwithstanding a recent USCIS proposal to change cap filing procedures.
• Though USCIS aims to implement some elements of its proposal by April 1, 2019, it is not yet clear whether the agency will have its streamlined cap registration process in place in time.
• If a new filing system is in place for the upcoming season, filing windows are expected to be short and advance preparation will be critical.

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The situation

In spite of a USCIS proposal that would revise the process for selecting H-1B cap petitions, employers are encouraged to prepare for the upcoming FY 2020 H-1B cap filing season as they have in the past. Whether or not a new filing system is in place by April 1, 2019, advance planning and preparation will be critical to ensure timely filings that meet all program requirements.

The proposed H-1B cap registration system

On December 3, USCIS published a proposed rule that would require employers to register online for each foreign national they wish to sponsor in the H-1B cap.  The proposed rule would require employers to complete a brief online form for each candidate during an initial registration period. USCIS would conduct the cap lottery using these registrations.  Employers would only submit full H-1B cap petitions and supporting evidence for registrations selected in the lottery. The proposal would also change the lottery process to maximize the number of foreign nationals with U.S. advanced degrees chosen in the lottery.

USCIS is accepting public comments on the proposal through January 2, 2019.  The proposal cannot be implemented until USCIS considers public feedback and receives federal approval of a final version of the rule.

How to prepare

Though USCIS hopes to implement the proposal in time for the FY 2020 H-1B cap season, which begins April 1, 2019, it is unclear whether USCIS can obtain federal government approval and complete the technological upgrades that will be necessary to administer the online system. Employers should consider the following as it prepares for the upcoming season:

• Cap procedures may not be known with certainty until just before the filing season opens.
• USCIS could defer registration to a future year. If the agency determines it is not feasible to implement the online registration program this year, it would instead accept petitions and run a lottery as it has done in the past, meaning that employers would need to be ready to file before April 1.
• If online registration is implemented in time for the FY 2020 season, filing windows are expected to be short. Employers may only be given a 60-day window to file cases selected in the registration lottery. In addition, employers would be subject to new compliance responsibilities, which would require thorough vetting of all cases in advance of the online registration period. 
• Though online registration could be deferred, a proposal to switch the cap lottery order could be in place for the FY 2020 cap. USCIS also seeks to change the order of the cap lotteries so that the advanced-degree lottery is run before the regular cap lottery. The proposed rule allows USCIS to implement this change separately from the online registration proposal, meaning that there is a higher likelihood that the lottery order proposal could be in place for the upcoming cap season. ​

What employers should do now

Your organization should continue to work with your Fragomen team to have your H-1B cap cases ready before April 1, 2019 so that they can be filed timely. Whether or not a new system is in place for the FY 2020 filing season, advance preparation will be critical. Take the following steps now to ensure timely filing:

• Continue assessing your FY 2020 H-1B employment needs. Getting an early handle on your hiring needs and the approximate number of petitions to be filed will allow you to better manage budget and H-1B workload, and help you coordinate even more effectively with your Fragomen team, especially if processing changes occur.
• Get LCAs early. Work with your Fragomen team to seek labor condition applications (LCAs) – mandatory for every H-1B petition – as soon as possible. Obtaining LCAs now will help your organization avoid processing delays later in the H-1B season.
• Start gathering necessary evidence. Work with your Fragomen team, corporate colleagues and H-1B candidates to gather company documents, academic transcripts, degrees and other essential evidence. These can take time to assemble. Missing or incomplete documents can mean delays or denials.

Fragomen continues to closely monitor the H-1B cap registration proposal and will provide regular updates as it progresses through the regulatory process. If your organization would like to submit comments on the proposed regulation, please contact your designated Fragomen team or the firm’s Government Strategies and Compliance Group.

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