The Standard H-1B Cap of 65,000 Has Been Reached for FY 2020

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At a glance

• USCIS has received enough H-1B cap petitions to reach the annual regular quota of 65,000.
• The agency has not yet determined whether it has received a sufficient number of petitions to meet the H-1B advanced-degree cap exemption of 20,000.
• Because of recent changes in the H-1B cap selection process, USCIS may not announce whether the advanced-degree cap has been reached until after it completes an initial cap lottery or other preliminary intake procedures. A further announcement is expected in the coming days.

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A closer look

USCIS has announced that it received enough cases to meet the 65,000 annual limit for Fiscal Year (FY) 2020 regular H-1B cap employment during the first five business days of the filing season. However, because of recent changes in the H-1B cap selection process, USCIS has not yet determined whether it has received enough petitions to reach the cap exemption of 20,000 for holders of U.S. advanced degrees. The agency is expected to make an announcement about the advanced-degree quota in the coming days.

Employers will not be able to file any further standard H-1B cap petitions until April 1, 2020. It is possible, though unlikely, that USCIS could accept additional advanced-degree cases beyond April 5, but it is expected that the final date for acceptance of all FY 2020 cap submissions will be April 5.

The agency will continue to accept petitions that are not subject to the cap, including extensions, changes of employer, amendments, concurrent employment for existing H-1B workers, and petitions filed by organizations that by law are exempt from the cap.

What’s next: the cap lotteries and announcement of advanced-degree cap exhaustion

USCIS has not yet disclosed the total number of submissions it has received against the FY 2020 H-1B quota.

If, as has been the case in recent years, both the regular and advanced-degree quotas have been exceeded, USCIS will run two selection lotteries as in the past, but will switch the order of the cap lotteries under new regulations. The agency will place all H-1B cap filings in a first lottery to select enough petitions to meet the 65,000 H-1B quota. Advanced-degree cases not selected in the first lottery will be placed into a second lottery to select enough qualifying petitions to meet the cap exemption of 20,000. Because of the change in the order of the lotteries, the agency may not announce that the advanced-degree cap has been reached until after it has run the regular cap lottery.

The agency estimates that the change in the order of the lotteries will yield a higher proportion of H-1B workers holding U.S. advanced degrees, one of the key goals of the Trump Administration’s Buy American, Hire American executive order.

Receipting and adjudication

Employers whose petitions are selected for processing should begin to get filing receipts within weeks after the lotteries are run. Employers who requested premium processing for H-1B cap changes of status may begin to receive email filing receipts within days after the selection process, though USCIS will not begin adjudication of those cases until May 20. It could take several weeks or more for USCIS to complete initial data entry and issue filing receipts for petitions filed by regular processing. 

Initial adjudication of premium cases should be complete by June 4. By this date, employers should receive an approval, RFE or denial. If an RFE is issued, additional time will be required for a determination.

USCIS is expected to begin working on regular processed cases by early to mid-June, though could do so earlier.

Cases not selected in the lottery will be returned to petitioners with their filing fees, but the timing of returns is not yet known.

What this means for employers

Employers should expect a USCIS announcement concerning the advanced-degree quota in the coming days.

Once USCIS completes the cap selection process, employers and foreign nationals should be prepared to wait up to several weeks to learn whether their petitions were accepted in the H-1B cap lotteries. If any of your organization’s cap filings are not chosen, your Fragomen team can assist in identifying alternatives for affected employees.

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