Reminder: FY 2020 H-1B Cap Starts April 1

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At a glance

• Demand for FY 2020 H-1B cap numbers is expected to be high, as in past years.
• Employers should continue to work with their immigration counsel to identify cap needs, submit labor condition applications and collect supporting documents.
• USCIS has not yet announced whether premium processing will be available for FY 2020 cap cases.
• The new H-1B cap online registration system recently unveiled by DHS will not take effect until the FY 2021 H-1B cap, which begins April 1, 2020.

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The situation

The H-1B cap season for fiscal year (FY) 2020 will begin on Monday, April 1, 2019.  With less than two months until opening day of the filing period, employers should be working closely with their Fragomen team to finalize H-1B needs, gather necessary documents and submit labor condition applications (LCAs), so that they are ready to file H-1B cap petitions during the week of Monday, April 1 to Friday, April 5, 2019.  Employers should continue to prepare for this cap season as they have in past years, though changes are on the horizon for future years, as discussed below.

Demand for new H-1Bs is expected to remain high in this year’s filing season.  Last year, U.S. Citizenship and Immigration Services (USCIS) received 190,098 filings -- similar to the prior year, but still far exceeding the 85,000 quota. Pent-up demand, low U.S. unemployment rates, and continued economic growth will mean tight competition for H-1B cap numbers again this year.

Employers who are not prepared to submit their cap petitions during the first five business days of April could be shut out of access to the limited number of H-1Bs available for new employment in the next fiscal year.  Missing the FY 2020 quota means that an employer would not be able to file petitions for cap-subject H-1B employment until early 2020 for start dates in FY 2021, which begins October 1, 2020.

Premium processing for FY 2020 H-1B cap cases

USCIS has not yet announced whether premium processing will be available for FY 2020 H-1B cap cases. Last year, USCIS suspended premium processing for FY 2019 cap cases, and only lifted that suspension on January 25, 2019 – making it beneficial for long-pending FY 2019 cap cases only.  (The premium processing suspension remains in place for most other H-1B filings.) 

Fragomen is closely monitoring the status of premium processing for the FY 2020 cap and will provide updates as new information becomes available.

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

This season, 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.  USCIS estimates that the change will result in an increase of approximately 5,340 advanced-degree selections; business immigration stakeholders have estimated a more modest increase.

Looking ahead

The long-anticipated online H-1B cap registration system, established by the recent H-1B registration rule, is expected to be operational for the FY 2021 H-1B cap season, beginning April 1, 2020. 

Once implemented, the new system will require employers to submit a brief online registration for each prospective H-1B beneficiary. Employers would only file full cap petitions for registrations selected in the cap lottery.  The Department of Homeland Security is expected to provide further details on the system’s operation early next year. 

The H-1B cap timeline is expected to change under the new system. USCIS will announce the dates of the H-1B registration period at least 30 days in advance, and the period will begin in mid-March or earlier.  Employers will need to begin working with their counsel to identify and vet the eligibility of prospective H-1B candidates in advance of the registration period.  Though online registration will make it easier to enter the H-1B lottery, USCIS will be monitoring the system to ensure that it is not “flooded” with non-meritorious registrations. If a registration is selected, employers must be ready to submit a cap petition within a designated filing period.

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