The H-1B visa is a highly sought-after immigration option for those possessing bachelor’s degrees and higher education degrees. If you are applying for the H-1B Visa 2019 lottery, you were probably not selected in the visa lottery last year or in recent prior years. The good news is that you can apply again this season! Due to the fact that the window is rapidly approaching it’s best to start preparing early. This involves gathering the necessary documents, securing legal counsel and filing the appropriate forms. In this post, we’ll be exploring some H-1B 2019 lottery predictions for the upcoming season.
IMPORTANT UPDATE: Premium processing has been suspended for all cap-subject petitions for the 2019 fiscal year. The suspension will take place April 2, 2018 and continue until September 10, 2018. To read more about this suspension and how it affects your case, read our premium processing suspension update.
What is the H-1B Visa?
The H-1B visa is a non-immigrant visa which permits U.S. companies and employers to enlist professionals from specialty occupations overseas. With the H-1B visa, a foreign professional could work with the designated employer in the United States for a total of six years.
As usual, we predict that the H-1B requirements will remain the same as previous years. However, as you will see later on, these requirements could very well change in the upcoming years. As of now, the requirements are as follows. You must:
- Have a job offer from a U.S. employer for a specialty position requiring a bachelor’s degree
- Possess at least the required bachelor’s degree
- Not be the sole proprietor of the sponsoring company
Your employer must also be able to pay you the prevailing wage and show that hiring you is a business necessity. Additionally, even though the rules have been relaxed a bit surrounding self-employment, you still cannot self-petition. To be able to use your own business as your H-1B employer in 2019, you will still need to set up a CEO or board of directors with the power to control your salary, duties, and employment status.
Your employer will also need to obtain a Labor Certification Application for you. This means that your employer must make four attestations to the Department of Labor:
- Your employment must not have a detrimental impact on the workers currently employed.
- The current employees must be notified of your employer’s intent to hire you.
- You must be paid the prevailing wage as a minimum. This is a wage that is calculated based on your position and geographic location.
- The job location must not be experiencing a lock-out or strike.
These measures are put in place to protect the current workers and to prevent employers from using foreign labor as an alternative or replacement for domestic workers. Therefore, getting an LCA should be your employer’s first step along the H-1B journey for 2019.
Compared to other nonimmigrant visas, the H-1B may seem easier due to the relatively low eligibility criteria. However, you need to take one thing into account: chance. The main thing that separates the H-1B from other visas is the annual lottery that takes place. Because of the fact that many more people petition for the H-1B than there are slots available, the USCIS randomly selects 85,000 petitions to be sent to processing. Any that are not selected will have their petitions and fees returned to them.
What’s more, the H-1B visa allows foreign workers to be accompanied by their spouse and children (under 21) via the H4 Visa. While the demand for H-1B visas was lower last year compared to previous cap seasons, the visa lottery was still necessary as 199,000 visa petitions were received from April 1st to April 7th. If that’s any indication of the demand, then we can expect a lottery again this year.
Be sure to read our complete guide on the H-1B visa for 2019.
H-1B Lottery 2019 Predictions
USCIS will officially begin accepting petitions for the H-1B Visa 2019 on April 1st, 2018 for the next fiscal year which spans from October 1st, 2018 to September 30th, 2019. In other words, all petitions filed after April 1st will apply for the H-1B Visa 2019 Lottery.
To get an overview of our predictions for 2019, take a look at this short video:
What is the H-1B Visa Cap?
The H-1B Visa cap, enforced by USCIS, has a congressionally mandated limit of 65,000 for the regular pool and an additional 20,000 for the advanced degree. Be aware that not all H-1B nonimmigrant visas are subject to the annual cap.
Who is exempt from the H-1B Cap?
In order to be considered a cap-exempt petition, you must have either been previously counted against the cap or have a position with a cap-exempt employer. Note that certain position with qualified employers are not subject to the H-1B annual quota even if the candidate has not been counted against the cap previously.
An employer who is cap exempt generally falls into one of the following categories:
- Non-profit organization. This is defined by the USCIS as an organization that is “primarily engaged in basic or applied research”
- Governmental Research Center
- Institute for Higher Education
Additionally, if you are already an H-1B visa holder and want to transfer employers or extend your status, then you have already been counted against the cap and your petition will be considered cap-exempt.
Keep in mind that transferring your status from one employer to the next has a caveat. If you originally came to the U.S. through a cap-exempt employer, then transferring to another cap-exempt employer is not a problem. However, if you decide to transfer to a cap-subject employer, you will need to go through the lottery process.
That employer will not be able to file until April 3rd, your petition would need to be randomly selected in the cap, and you would not be able to switch employers until October 1st. Essentially, it would be like opening a brand new case. This is to prevent those who would enter the U.S. through a cap-exempt employer just to switch over to a cap-subject employer with the goal of subverting the lottery.
“H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the H-1B cap (see the Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229). H-1B workers in Guam and the CNMI are exempt from the H-1B cap if their employers filed the petition before December 31, 2019. Employers cannot file a petition or an extension request for an employee more than six months before the intended employment start date.” Source
Masters Versus Regular Cap
You might be wondering what the difference is between the master’s advanced degree cap and the regular cap. In order to qualify for the master’s cap, the applicant must have a United States master’s degree (or higher). Note that only having an Associate’s Degree or Bachelor’s will not make you eligible. Likewise, if you’ve obtained a Master’s degree from a foreign institute, this will not qualify you for the cap.
Note that only having an associate’s degree or bachelor’s will not make you eligible. Likewise, if you’ve obtained a master’s degree from a foreign or unaccredited institute, this will not qualify you for the cap. You should stay up-to-date with the latest news about your institution to ensure that it is still accredited.
The advantage of being entered into the master’s cap is that you will essentially have two separate opportunities to be selected for a visa. This is because the USCIS selects the winners of the master’s cap first. Any petitions that were not selected in the master’s cap will then be re-entered into the regular cap for a second chance.
Upcoming H-1B 2019 Lottery Predictions- What to Expect
Using the data from last year and prior years, our H-1B 2019 lottery predictions are that there will be an excess number of H-1B petitions submitted again. What contributes most to the number of applications filed? A number of factors play a role including:
- An increased demand for H-1B Visas as a result of improvements in the job market
- Increased corporate spendings and hiring driven by the new Tax Cuts and Jobs Act of 2017.
- Applicants carried over from last year who were not selected and wish to get picked
- Some changes in the restrictions to L-1 Visas which make H-1B visas more attractive
How to Prepare for H-1B Visa 2019
Since USCIS starts accepting applications for H-1B Visa 2019 on April 1st, you would benefit greatly by begin preparations. The first thing to do is secure a qualified H-1B visa attorney. Are you a skilled professional working outside the U.S.? If so, the first step is to find a company willing to sponsor you.
Take a look at this unofficial list of H-1B sponsors from recent years. [Disclaimer: We take no responsibility for inaccuracies of unofficial data sources.]
Preparations as an F-1 Student
If you’re currently an F-1 student then the preparations may vary slightly. You should be trying to get an internship or a job with a U.S. company and researching which sponsors are available for your desired time frame.
Remember though that if you withdraw from school while you’re on an F1 visa then you do not get the sixty day grace period that some other visas receive.
Opt for Premium Processing
When time becomes of the essence, premium processing can be a viable avenue. Normally you need to wait a minimum of three months to find out whether your petition is approved or rejected. However, premium processing expedites the process and gives you an answer in 15 calendar days. Note that there is an additional fee for this service.
However, it is important to understand that premium processing is not a way to be cap-exempt and it does not accelerate the process of approval for your visa application. This feature only applies to your I-129 petition and the 15-calendar-day begins on the day that the USCIS begins accepting petitions. If your petition is selected in the lottery, then your start date with your employer will be October 1st.
The reasoning behind this suspension is to be able to process long-standing H-1B petitions that were not filed with premium processing. By removing this preference, the USCIS can clear out the backlog of petitions that have built up over the years.
H-1B Fee Predictions
Due to recent laws that have been put into place, the following fees were changed from previous fiscal years:
- The basic filing fee for the I-129 form has increased from $325 to $460
- The additional fee for Public Law 114-113 has increased from $2,000 to $4,000 (if applicable)
Be sure to keep these changes in mind as you file. The ACWIA and Fraud Detection and Prevention fees still apply. To gain a better understanding of the cost for filing for an H-1B, consult a qualified immigration lawyer.
H-1B Grace Period Predictions 2019
After the Final Rule instituted in January of 2017, H-1B holders have been given a grace period that extends 60 days after the termination of your employment, provided that it does not exceed your I-94 arrival/departure card. This will give you time to either find new employment, change your status to a different visa, or prepare to leave the country. If you are still in the U.S. after the end of this grace period, you may be considered “out of status”, which could have serious consequences including a bar from future visits to the country. We predict that this grace period will still be extended to H-1B holders in 2019.
H-1B Future Under President Trump
One thing that our clients repeatedly come back to is this: how will President Trump’s policies affect my immigration case under H-1B status?
One of the changes that has been predicted is the removal of the H-1B lottery system in favor of a new system that gives preference to foreign professionals that earn a considerable salary. This has been proposed due to the fact that some consulting companies will flood the lottery with petitions, making it increasingly more difficult to secure a position for anyone else.
Another possible change that might be made is the removal of the H-1B master’s degree exemption. Currently there is a bill in Congress that seeks to make several changes to the H-1B visa program. Among other changes, it aims to introduce an “advanced salary exemption” for those who earn over $90,000 annually. However, keep in mind that this bill is not a law yet and is still far away from becominng one.
President Trump has also commissioned a committee to ensure that the regulations around certain nonimmigrant visas are enforced. The first step for this is to have regular site visits to all employers that employ H-1B or L-1 visa workers. We will see if these regulations will increase for the 2019 season.
H-4 EAD Rule
In 2015, the Obama administration established a rule allowing H-4 holders (the spouses of H-1B holders) to apply for Employment Authorization Documents, allowing them to work while their spouse was under H-1B status. This is only available to the spouses of H-1B holders that have an I-140 immigrant visa (green card) petition pending with the USCIS.
As of now, this rule still stands. However, the new administration is reconsidering this rule and aims to remove it, meaning that the spouses of H-1B holders will need to find other means of working under their H-4 visas. We will be sure to keep you posted on the latest developments.
While these changes have not yet been put into place or even approved, it is still important to be aware of the fluctuations involved with immigration law.
Once your 2019 H-1B visa is selected in the lottery, it will be sent for processing. Note that having your petition selected in the lottery does not mean that it will automatically be approved. An evaluating officer will take a look at your petition and supporting evidence to determine if all of the information is accurate, complete, and consistent. He or she will also be looking to see if you have enough supporting evidence and if you have submitted the right fees to the right places. If your petition fails this check, it will likely be rejected, meaning that you may just need to fix the error and refile.
Next, the officer will examine your case and determine whether or not you qualify for the H-1B. If your petition fails this stage, it may be denied, requiring more extensive work to fix. If it passes, then you will be notified and you will be able to start working on October 1st if you are already in the U.S. and have a nonimmigrant status that will last you until then.
However, if that is not the case, you may need to go through an interview at the U.S. consulate or embassy in your home country. While, in the past, not everyone has had to go through an interview, our prediction for the 2019 H-1B season is that these interviews will become more mandatory.
H-1B Filing Tips
Take a look at these helpful tips for filing your petition correctly and maximizing your chances of selection.
1. Timing is Key
Because the USCIS began last year’s season by accepting petitions on April 1st, it is important to keep in mind that timing is everything when filing. If you haven’t started gathering the necessary documents and preparing your petition, you should start now.
If you received a rejection notice last year, you will see that the USCIS clearly stated that the date in which it will begin accepting petitions in 2019 is also April 1st. Consult with your immigration attorney to make sure that you don’t miss the window for filing.
2. File with Multiple Employers
If one employer files several petitions for the same employee, they will be rejected. However, the employee can submit multiple petitions for different employers. Doing this can greatly increase your chances for being selected in the lottery.
3. Part-Time Work
The H-1B visa is not limited to full-time workers. If you only work part-time, this visa option may be for you.
3. Avoid Common Mistakes
In order to ensure that your petition has the best chance of being approved, avoid these common pitfalls that tend to result in rejections:
- If the employer’s Federal Employer Identification Number (FEIN) for an LCA is not recognized in the USCIS iCert system, then a pre-verification must take place. This can delay your petition approval by several days.
- Triple check the service center that will be receiving your petition. Sending it to the wrong center can seriously delay approval.
- Be sure to use an approved delivery method to submit your petition. USPS, FedEx, and UPS are all bonded delivery services that can be used.
- Work with your immigration attorney to make sure that your job description is thoroughly described in your petition.
- If your fee payments have been combined into one single check, you may experience delays in processing. Be sure to write separate checks for each individual payment.
- Make sure that your I-129 start date is correct and does not contain any mistakes or typos.
- Many people make the mistake in thinking that purchasing premium processing will secure them a spot in the lottery or otherwise increase their chances. This is not true. This feature only causes your I-129 to be processed in 15 days and does not change your employment start date.
- Make sure that all mandatory fees are paid by the employer. Should the USCIS learn that the employee paid these fees after the visa has been issued, there is a possibility that it could be revoked.
4. Consider Alternatives to the H-1B
If you and your immigration lawyer come to the conclusion that you do not qualify for the H-1B visa or you would be better served with another option, here are some alternatives.
- If you are a Canadian or Mexican citizen, the TN visa may be a better option. This visa class has a limited list of qualified occupations but offers easier application processes and unlimited renewals.
- The J-1 visa allows people from a variety of occupations to participate in a program that would sponsor them. These include, but are not limited to, students, doctors, nannies, camp counselors, and professors.
- Under the L-1 visa, an employer can have executives, managers, or specialty employees from an office outside the U.S. to one within its borders. This can also be a good way to start a new branch or subsidiary in the U.S.
- The O-1 visa allows people with extraordinary achievements in their field to work in the U.S. for a period of up to three years.
H-1B to Green Card Predictions
The process of going from an H-1B visa to a green card should remain the same for the 2019 season. If you are not aware of how to make this adjustment, here are the basic steps:
- Decide which green card works best for your situation
- Have your employer (current or new) obtain a PERM Labor Certification for you (unless you are applying for the EB-1 or EB-2 NIW)
- Have that sponsoring employer file an I-140 petition on your behalf.
- Wait until your petition has been approved and your priority date is current.
- File an I-485 to adjust your status to legal permanent resident.
Even though there are no changes to this process for 2019, it would be wise to keep an eye on the USCIS news site or this blog to see if there is any information that would impact your green card case.
How Our Immigration Attorneys Can Help
Our expert team of attorneys has extensive experience and a great reputation for offering top-notch representation in H-1B Visa, L-1 Visa, and Employment Green Card cases. We offer a highly competitive flat fee for H-1B filings and an initial consultation to review your case.
If you have any additional questions regarding the H-1B Visa process or need more H-1B filing tips please don’t hesitate to fill out this form and see if you qualify for a free consultation.
SGM Law Group also offers services in the following areas:
- H-1B, E, L, O, P, H-3, J, K and U Visas, as well as I-130 and I-140 Immigrant Petitions with Accompanying Adjustment of Status (I-485)
- EB-1 Extraordinary Ability Petition
- PERM Labor Certification with the Department of Labor
- EB-2 and EB-3 Employment-based Green Cards
- Investment Based and Treaty Trader Visas and EB-5 Green Card