H-1B Visa 2020 Cap Season Background
The H-1B cap 2019-2020 filing season is right around the corner, so it’s time to take another look at this popular visa. With the lottery window opening up on April 1st this year, there are only a few short months left before it’s time to file. If you were not selected in last year’s cap, then it is in your best interest to use this guide as your one-stop shop for all your H-1B info, news, and updates. The H-1B was created for skilled professionals with at least bachelor’s degrees to work in the U.S. in fields such as computer science, architecture, medicine, dentistry, engineering, accounting, and more.
Our team of highly-experienced attorneys specialize in H-1B and employment based immigration and have helped hundreds of skilled workers from all over the world and from all backgrounds obtain H-1B visas. We want to keep you appraised of the latest news concerning this highly sought-after visa and will be regularly updating this post to keep you up-to-date on the H-1B cap 2020 filing season. For more information about the H-1B visa or to see how we can take the stress and worry out of your immigration experience, you can contact us directly to see if you qualify for a free consultation.
- The Department of Homeland Security (DHS) has posted a final rule (on 01/30/2019) amending regulations governing H-1B cap-subject petitions, including those eligible for the Master’s degree exemption. It reverses the order by which the USCIS selects H-1B petitions under the H-1B regular cap and the master’s cap (advanced degree exemption).
- The premium processing suspension ended on January 28, 2019. This means that premium processing will only be available to H-1B petitions filed for the FY 2019 cap. There is no announcement regarding premium processing for the 2020 cap so far except that the suspension will continue for all H-1B petitions except those for the 2019 season.
- 4/8 Update: The USCIS has announced that they have received enough H-1B petitions to fill the cap for 2020. The lottery will now be conducted as per the new changes, with the master’s cap being performed after the regular cap. We expect that the results will be posted within the next week, so check back here regularly to get the latest info as soon as it is released.
See below the list of topics covered in our H-1B visa 2020 guide. Feel free to click on the numbered links below to jump straight to the topics you’re most interested in.
- 2019-2020 Lottery Overview
- 2019-2020 Lottery Predictions
- How the Lottery Works
- Eligibility Requirements
- Who is Exempt from the Cap
- Master’s Cap
- Premium Processing
- H-1B Visa Fees
- H-1B Visa Sponsors
- Common Filing Errors
- H-1B Challenges
- H-1B Denial
- Requests For Evidence
- Federal Register New Rule
- H-1B Under Trump
- H-1B FAQs
- How We Can Help
Overview of H-1B 2020 Cap Lottery
The United States Citizenship and Immigration Services (USCIS) considers the H-1B visa 2020 season to run from October 1st, 2019 to September 30th, 2020 but begins accepting petitions on April 1st, 2019.
If you received a rejection notice for the previous H-1B season during fiscal year (FY) 2019, it also indicated that as a non-selected applicant you are permitted to file a new petition for FY 2020 on or after the 1st of April.
Here are some other important points outlined in the USCIS rejection notice:
- Foreign workers with specialized knowledge may submit I-129 petitions for FY 2020 starting on April 1st, 2019.
- The H-1B cap for FY 2020 will remain unchanged from previous lotteries
- The regular quota will be 65,000 and the U.S. master’s quota will be 20,000
- Based on previous seasons, USCIS expects to obtain enough petitions for the H1B 2020 cap season within the first five business days. If the cap is exceeded in that time period then a lottery via automated computer will be conducted.
- Any petitions that are not chosen in the lottery or received after the cap is closed will be rejected.
The USCIS will begin processing H-1B petitions on the first business day of April, which would be April 1st, 2019. The USCIS will likely make it clear that all cap-subject H-1B petitions filed before April 1st for the FY 2020 cap will be rejected.
H-1B Visa 2020 Masters Cap/Quota
Based on the guidelines set by USCIS, 20,000 petitions are exempt from the H-1B cap for beneficiaries who have earned a U.S. master’s degree or higher. This is what’s referred to as the advanced degree exemption.
IMPORTANT UPDATE: H1B 2019-2020 Master’s Quota Lottery Reordering
We are going to discuss some changes that are in the works for the H-1B visa cap this year and in years to come. On January 30, 2019, the DHS announced a final rule, which makes two significant changes to the H-1B visa lottery process. The final rule will become effective on April 1, 2019.
(1) New Master’s Cap Order
Under guidance from the Buy American and Hire American executive order, the USCIS is in the process of implementing some changes to the H-1B process to give preference and priority to highly-skilled and highly-paid workers. One such change involves the order in which the lotteries take place.
As we stated earlier, the USCIS has, in years past, conducted the master’s lottery first, then entered the unselected petitions into the regular cap. This proposed change involves a complete reversal of that order. Instead, the regular lottery will be conducted first, including all cap-subject petitions. Then, all unselected master’s petitions will be entered into the master’s lottery.
The USCIS is anticipating that this will increase the chances of master’s petitions being selected by 16%. Here is how that works.
Previously, the master’s cap would be conducted first, meaning that all cap-subject master’s petitions would be entered into the master’s lottery. If your petition was not selected, then it would be entered into the regular cap to compete with tens of thousands of petitions.
Under this new rule, the regular cap would be conducted first. Because it includes all cap-subject petitions (including master’s petitions), some master’s petitions will inevitably be selected in the regular cap without ever entering the master’s lottery. After that, all unselected master’s petitions will be entered into the master’s lottery, which will be smaller than it would be under the normal order since some master’s petitions have already been selected, shrinking the pool of potential petitions. Per DHS Final rule, this new policy will be in effect for H1B cap 2019-2020 season, starting April 1, 2019.
(2) Online Pre-registration
The USCIS is in the process of building and testing an online pre-registration system to make the H-1B lottery a more manageable process. Rather than submit a petition to enter a beneficiary into the lottery, employers will register their beneficiary with the USCIS database before the start of the filing window. Petitions will still be used, but only once a beneficiary has been selected in the lottery. However, the electronic registration requirement will be suspended for the fiscal year (FY) 2019-2020 H1B cap season. Here is how this system is expected to work in the future:
- Employers will pre-register their alien workers with the USCIS several weeks before April 1st (they will announce the exact times if this rule is implemented this year). This will involve inputting the information about the workers into the database.
- The USCIS will conduct the lottery and choose the beneficiaries that will go onto processing (still 65,000 for the regular cap and 20,000 for the master’s cap).
- The employers of those that were selected will then file their petitions with the USCIS for processing along with the appropriate filing fees and supporting documents.
- If the petition is approved, then the H-1B visa will be issued and the beneficiary’s start date will be October 1st of that same year.
Therefore, employers wishing to file petitions for H-1B workers would no longer need to file petitions in order to enter the cap. The USCIS states that this new system will help them expedite the H-1B process and avoid having to handle and sift through hundreds of thousands of petitions. This also prevents them from having to return the packets and fees to all unselected petitioners.
The USCIS memo states that this registration system is still being tested, and will not completed in time for the 2020 filing season. The USCIS also reserves the right to suspend the registration system any year that they encounter technical difficulties. Check back with this post later on to see what the status is on the new system.
Will We See An Upcoming H-1B Visa 2020 Lottery?
During the FY 2019 H-1B visa lottery, 190,098 petitions (taking into account the Master’s exemption) were received by USCIS within the first week. This number was far above the 85,000 petition cap. As a result, a lottery was conducted last year to randomly select those among the pool lot.
While we cannot guarantee it with absolute certainty, we can predict based on the history of past H-1B seasons that there will be another lottery for the H-1B visa 2020 season. We’ve seen a lottery occur every year since FY 2014. Therefore, based on that, we think it’s safe to predict a lottery. However, should the number of submitted petitions drop lower than the 85,000 petition cap, there will likely not be a cap lottery. If the current administration continues its campaign to increase H-1B regulations and scrutiny, we may see a year without a lottery in the coming years.
Considerations for Increased Number of Filings
- Greater demand for these types of specialty worker visas due to improvements in the domestic job market over the last 5 years.
- Reapplications on behalf of petitioners not selected in the last H-1B season.
- Changes in restrictions related to L visas and B visas. We’ve also noticed a greater preference of H-1B visas from companies.
- Expected increase in corporate spending and hiring, driven by the recently passed Tax Reform Bill.
For these reasons we expect the H-1B visa cap 2019-2020 to remain open for no more than 5 business days.
How the Lottery Works & H-1B 2020 Lottery Predictions
The H-1B visa 2020 process is rather simple when broken down. Under the regular cap, 65,000 petitions are randomly selected by a computer. An additional 20,000 petitions will also be selected under the advanced degree exemption. 6,800 will be set aside for citizens of Chile and Singapore, according to the Free Trade Agreement.
What happens after the lottery selection?
Once a petition is selected, it will be sent to a service center to be approved or rejected. Then, a tracking identifier called an EAC number is assigned to each petition.
The first 3 letters of your petition’s EAC number indicate the location of the service center that is processing your petition. For example, WAC would mean the Western Adjudication Center in California. The two numbers that appear next correlate to the year followed by the working day. The last five numbers indicate your case number. An example would look like this: WAC-18-021-56974.
If you have any questions about this process, contact the immigration lawyer that helped you file the petition for your H-1B visa.
Eligibility Requirement for Specialty Occupation
In order to be eligible for the specialty occupation criteria the H-1B job must adhere to one of the criteria below:
- The job must require at minimum a Bachelor’s degree or higher (or equivalent).
- The required degree for the H-1B job is considered common to the industry.
- The position can only be executed by an individual holding a degree due to its complexity.
- It is normal for the employer to require a degree (or equivalent) for the position because the skills are so specialized.
Not Eligible for an H-1B Visa? Other options…
If you’ve determined that you are not eligible for an H-1B visa based on the aforementioned points, consider filing for an H-2B visa or even an L-1 visa may be a viable option. An L-1B visa is also a non-immigrant visa option which permits employers based both in the United States and abroad to transfer personnel from the foreign offices to the operations based in the U.S. for up to 5 years.
The J-1 visa might also serve as an alternative. Instead of being tied to an employer, the J-1 is based on a government-approved program. Students, doctors, counselors, and nannies are among the many occupational programs that can take advantage of this visa.
Cap Exempt Petitions
What exactly are cap-exempt petitions? We get this question often so it’s important to address it. A cap-exempt petition is one that was previously counted against the cap.
It can also be one that was used as a way to extend the H-1B worker’s time in the U.S. or to change the terms. Notice that some positions with qualified workers are not required to be subject to the annual quota even if you (the petitioner) have already been counted against it.
However, there are three main categories of occupations that are considered cap-exempt from the start:
- Jobs for an institution of higher education
- Jobs for non-profit organizations that are associated with an institution of higher education
- Jobs for governmental research centers
However, it is important to note that whenever you change employers, you need to have that employer file another petition. If that employer is not cap-exempt, then the petition will be entered into the lottery. If it is not selected or it is denied, you will not be able to make this transfer. Therefore, changing from a cap-exempt to a cap-subject petition as a way to get around the H-1B cap is not possible.
Premium Processing – How Does This Work?
Premium processing service allows an employment-based petition/application to be expedited. USCIS specifically ensure 15 calendar day for processing those petitions OR USCIS will issue a refund of the service fee.
It is important to note that purchasing premium processing only reduces the processing time for your I-129 petition. It does not make you cap-exempt nor does it guarantee you a spot in the lottery. If your petition happens to be selected, then your start date will still be October 1st like all other applicants.
Who is eligible? The USCIS has developed a complete chart of designated eligible classifications.
Also note that the premium processing fee has increased since last year. As of October 2018, the fee increased from the usual $1,225 to $1,410. Be sure to use this new fee, because an incorrect fee will result in a denial of your I-907 request for premium processing.
H-1B Visa Fees 2019-20
You may or may not have heard about the bill passed in 2016 which increases the H-1B Visa fee 2019-20 by $4,000 by the U..S Senate (the L-1visa fee was also increased by $4,500 on December 18th).
These fees took effect on April 1st, 2017
- Base Filing Fee: $460
- USCIS Anti-Fraud Fee: $500
- ACWIA Education and Training Fee: $750 for employers with less than 25 employees and $1500 for employers with greater than 25 employees
- Public Law 114-113 Fee: $4,000
- Premium Processing (optional): $1,410
- Attorney fee: See Our Fee
Here’s one scenario to illustrate how the fee would be applied to a foreign IT firm. Say for example Company X has more than 50 employees and has more than 50% of people on the H-1B visa. If they are filing for the H-1B visa with premium processing than they would be responsible for the base ($460), fraud fee ($500), Training fee (if applicable), new $4,000 fee, premium processing ($1,410) and attorney fee.
Keep in mind that the Public Law fee is only applicable to employers that have more than 50 employees. Also, more than half of those employees must be H-1B holders for the fee to apply. Speak with your immigration attorney to determine exactly which fees should be paid.
It is also important to note that the H-1B fees for 2020 are mostly the responsibility of the employer. If you, the beneficiary, pay fees that are meant for your employer, it will likely raise some red flags with the USCIS. In fact, the only fees that you are able to pay are the attorney fee and the premium processing fee, which still requires a written explanation for why the employee is paying and not the employer.
H-1B Visa Sponsors
Finding the appropriate H-1B visa sponsor is often one of the biggest challenges. One viable source to find a suitable sponsor is through an H-1B Visa Sponsor Database. You can filter your search by city or zip code and also see information detailing what sorts of jobs they have filed in past years.
*Please note that we take no responsibility for the accuracy of the information in the link above.
American Universities are a great place to look because academic institutions are not subject to the annual cap restriction so they can sponsor anyone if they think they’re suitable for the job.
Has My Case Been Accepted?
Are you wondering if your case has been accepted? Our lawyers understand that the H-1B visa process of waiting can be stressful for both you and your families.
In past years, the USCIS has been timely in sending us email receipts for approval notices and identifying individuals who have not been selected in the lottery. In all cases, the best way to stay up-to-date with the status of your petition is to keep open lines of communication with your assigned lawyer.
See a case study of one small company’s H-1B approval!
If your petition is selected in the lottery, then it will move on to the adjudication stage, which simply means that it will be processed. An evaluating immigration officer will decide if your H-1B case is approved or denied/rejected. If it is approved, then you will have one of two options:
- Simply waiting until October 1st for your H-1B status to automatically apply as soon as you start working. This is only available if you are already in the U.S. under a different nonimmigrant visa status and can maintain that status until you begin working.
- Going through consular processing. If you are outside the U.S. or your current nonimmigrant status will expire before October 1st, you will need to make an appointment with the U.S. Consulate or Embassy in your home country.
When you go to your appointment, you must have already completed and paid for the DS-160 online nonimmigrant application. Be sure to bring a printout of the confirmation page and the payment receipt. The DS-160 costs $190.
You may or may not be required to participate in a one-on-one interview with a consular officer. The USCIS reserves the right to interview whomever they choose before they enter the country. Also, because of the increased regulations and scrutiny surrounding the H-1B recently, it would be wise to expect and interview.
At your H-1B interview, the officer will ask you basic questions about yourself, your job, your employer, and your travel history. The best advice is to answer all questions quickly and honestly. Saying “I don’t know” is always preferable to lying, which could have serious repercussions in the future.
H-1B to Green Card
One of the many benefits of the H-1B visa is that it is considered a dual intent visa, meaning that it can be used as a means to apply for a green card. This is in contrast to other common nonimmigrant visas such as the TN and J-1 visas that could be jeopardized if you attempt to seek immigrant status.
If you are on the path from an H-1B to a green card, here is a quick rundown of the steps you should take:
- First, identify which employer you are going to use for this green card. In most cases, you need a U.S. employer to petition for you. This employer can be your current employer or an entirely new one. You should also determine what your position will be and what your job duties will entail.
- Second, decide which employment-based green card you are going to apply for. For example, a high-level researcher may want to consider applying for the EB-1B green card while a computer programmer might have better luck with the EB-2 green card. Work with your attorney to find the best option for your case.
- After that, your employer will likely need to obtain a PERM Labor Certification on your behalf. This is a concept that is similar to the LCA, but the PERM requires your employer to run an ad campaign for your position to determine if there are any qualified U.S. workers you would be displacing.
- Then, your employer can file an I-140 petition for you. The date that the USCIS receives this petition will be marked as your priority date.
- It will be your responsibility to consistently check the visa bulletin released monthly by the Department of State. You need to compare your priority date with the final action dates given in the bulletin. Once your priority date matches or passes the final action date provided in your category and country, your priority date will be considered current and you will be able to move onto the next step when your I-140 is approved.
- When your priority date is current, you can then submit an I-485 Application to Register Permanent Resident or Adjust Status. If this is approved, then your status will automatically transfer from an H-1B to a green card.
Avoid These Common Filing Errors
There are a number of issues and filing errors we see repeated time and time again which can interfere with getting an H-1B approval.
Choosing an incorrect I-129 start date
Sometimes, during the filing process, applicants will choose the incorrect start date on the I-129. Check with your attorney to ensure that all dates, wages, and important details are accurate to avoid having your petition denied.
Incomplete Job Description
To ensure that your job description meets all the necessary criteria, it’s best to have it thoroughly reviewed by a qualified H-1B visa lawyer.
Submitting your petition after the date that was issued to you by the USCIS can result in a delay in processing. To make sure that you do not create this delay, file your petition with plenty of time to spare.
It is important to note that the USCIS service center only considers a submission as timely if it reaches the center before the expected date. Because your petition will first reach a P.O. box, be sure to submit it well before the last day to guarantee that the service center will have time to collect it.
Labor Condition Application Delays
We’ve seen cases where the iCert visa portal system doesn’t always recognize the employer/company’s Federal Employer Identification Number or FEIN. This occurs because a pre-verification has not been completed prior to the LCA being submitted.
Unacceptable Delivery Method
Adjudicating service centers are very particular about the way that petitions are submitted. Delivering your petition by hand or through some other unconventional method can result in not having your petition processed.
To ensure that you are using an approved delivery method, send your petition via the United States Postal Service, Federal Express (FedEx), United Parcel Service (UPS), or some other bonded delivery service. Consult with your immigration attorney to learn which services are considered bonded.
Choosing the Wrong Service Center
The last issue that often comes up is filing with the wrong service center. Petitions which do not include the necessary fee will be denied and those sent to the incorrect service center will also not be processed correctly. Be sure to write a separate check for each one of the filing fees and sign all checks prior to sending.
Because of the exact nature of the immigration process, complications can easily arise from unique circumstances. Working closely with an immigration attorney can help you decide if these challenges apply to you and what you can do about them.
If you are the founder, co-founder, or sole proprietor of the company that you wish to work through, then you will be fulfilling the role of both the employer and the employee, which is not accepted by the USCIS. If the structure of your company allows for a board of directors to pay you instead of you paying yourself, you may be able to secure an H-1B visa as a business owner.
It is possible, however, for you to start a business on an H-1B visa. You must establish an entity (such as a board of directors or a CEO) that has control over your salary, your tasks, and your employment status. That entity must petition on your behalf. No matter what, you cannot self-petition on an H-1B.
Another issue develops when the employer that has petitioned on your behalf is a small business. The LCA has particular rules about how much an employee can be paid. If the small business does not have the capital to fulfill these requirements and also pay the petition filing fees, then you will not be able to file.
It goes without saying that the USCIS often denies H-1B visas to those it deems unqualified. However, by taking the right precautions, you can optimize your chances of approval (provided that your petition is selected in the lottery, of course).
The first thing to realize about this process is that there are essentially two refusal states: rejection and denial. These hinge on the two-pronged approval process that each H-1B petition goes through. The first prong involves having an immigration officer look over your case to determine whether:
- All of your information is complete, consistent, and accurate
- You have provided enough evidence and documentation
- Your employer has paid the appropriate fees to the appropriate places
If your petition does not pass this phase, then it will likely be rejected without a refund. Fortunately, the answer to this issue is often to simply re-file with the help of an experienced H-1B attorney.
If your petition passes this phase, however, it will go on to phase two, which means that the officer will determine if your evidence, background, occupation, and qualifications meet the H-1B visa requirements for 2020. If not, then you may experience an H-1B denial. In this case, re-filing may not be the solution.
It is occasionally possible for petitioners to file legal motions for an unfavorable outcome. There are two main motions that can be made here:
- Motion to reconsider – this is done if you and your attorney believe that the immigration officer evaluating your case erroneously denied your H-1B petition.
- Motion to reopen – this is done when you have acquired new evidence or documentation that would support your case if evaluated along with the principle evidence.
In contrast to the legal motions, which work with the evaluating officer, an appeal goes through a third party for an unfavorable decision, the Administrative Appeals Office. Unfortunately, the USCIS will usually send you a denial notice that includes a line prohibiting any appeals.
H-1B Requests for Evidence
Occasionally, the USCIS will send a Request for Evidence (RFE) rather than deny your petition outright. If the evaluating officer feels that some supporting documentation would make your case clear, an RFE is usually the way to go. If you receive an RFE, you will need to respond within the given time window (usually up to three months). There are a few ways to respond to this:
- Full response – this means that you submit all of the requested evidence simultaneously with your response.
- Partial response – these are the most common responses. In a partial response, you only submit some of the requested evidence either because you do not wish to submit it all or you simply do not have the evidence requested.
- No response – you can always withdraw your application.
In any case, your first step should be to bring your RFE to your immigration attorney to decide what to do next. The USCIS may be questioning the legitimacy of your employment, the relationship between you and your employer, the nature of your specialty position, or even the credentials of your degree. The response should fully argue why the submitted evidence addresses all issues brought up by the USCIS.
There are a few cases in which you would need to have a new I-129 petition filed on your behalf. These include changing employers and extending your H-1B status, among other things. However, if you are remaining with the same employer but some aspect of your position is changing considerably, you may need to have your employer submit an H-1B amendment so that your petition on file can reflect the most accurate information.
The main understanding is that an H-1B amendment is required for situations in which a “material change” has taken place. Usually, this means that your job duties or your job location has changed significantly. If you have gotten a promotion on your H-1B, you may or may not need to have an amendment filed. It all depends on whether or not your job duties have changed. Just make sure that your new position meets the same H-1B requirements as the old one and is related to your degree.
If you have an I-140 on file for an employment-based green card and you are changing your job, make sure that everything is in order in regards to the job that you are using for your immigrant visa.
2017 Final Rule
For those that missed the news, as of January 17th, 2017, the Federal Register will implement a series of changes called the final rule. These changes will impact aspects of several non-immigrant visas, including H-1B classifications.
The most beneficial of these changes is the addition of a 60-day grace period for anyone on a nonimmigrant visa whose employment is terminated. Usually, a foreign worker in this situation would find his or herself “out of status”.
Under the final rule, however, the USCIS will grant the worker almost 2 months to either find another employer or have their visa status changed to accommodate the transition.
The rule will also provide a 10-day grace period before and after the visa validation period. This will allow visa holders to adjust to life in the country before starting employment and also give ample time to finalize affairs before leaving the country after the visa has expired.
For prospective H-1B visa holders that are applying for positions that require a license (e.g. nurse, engineer, pharmacist), the final rule increases the possibility of obtaining an H-1B visa that has been temporarily approved without the required license. This is only granted to applicants that can prove that technical issues prevent them from being licensed or that they will be closely supervised by a licensed senior throughout their employment.
Finally, the Federal Register final rule makes it easier for H-1B holders who are sponsored to become a legal permanent resident to extend their stay in the U.S. past the normal maximum of 6 years.
H-1B Visa 2019 Under Trump
When campaigning for his current role as president, Donald Trump was very vocal about his plans for immigration—the H-1B visa in particular. Seeing the H-1B as a means for large agencies to hire cheap labor, this new administration seeks to take a much closer look at this particular immigration system and to create regulations that could very well impact how the H-1B visa works in 2020.
One thing that has been noted from the past H-1B lottery is that there has been a large increase in the number of Requests for Evidence from previous years. In fact, there was a 44 percent increase in the number of RFEs from the 2017 to the 2018 fiscal year, the highest it’s been since 2009.
What this tells us is that the USCIS is scrutinizing H-1B cases more heavily than it has in the past. Where some cases and situations may have made it through the adjudication process without a hitch, those same cases are being stopped by RFEs. More evidence is now required to get an H-1B visa.
The new administration has also made requests for regular site visits to employers that hire H-1B and L-1 workers. This is to ensure that foreign nationals and their employers are complying with the terms of the H-1B immigration status and that they are working in the capacity and location that was indicated on the most recent I-129.
Additionally, President Trump has recently made an announcement that he intends to create a path for H-1B holders to gain citizenship. Here is the memo:
“H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.”
Currently, there is no direct path from any nonimmigrant visa to citizenship. In order to be naturalized as a citizen, you must first have been a lawful permanent resident (green card holder) for a certain number of years. This intention to create a direct path from an H-1B visa to citizenship may have far-reaching repercussions if it takes place.
What About the Spouses of H-1B Holders?
The Obama administration established a rule in 2015 allowing those with H-4 visas (the spouses and dependents of H-1B holders) to obtain employment authorization so that they could work while in the U.S. provided that their H-1B holder had a pending I-140 petition for a green card.
However, it has recently come to light that this rule is under consideration again, as the new administration may decide to rescind this privilege. There are many speculations for what this may mean for current and future H-4 holders, and very few of them are good. The abolition of this rule would essentially bar the spouses and dependents of H-1B holders from working until they received work visas or green cards of their own. The jury is still out, however, and we wait to see what this decision has in store.
H-1B Visa Frequently Asked Questions
Below are some H-1B visa FAQs that our office receives. Should your question not be mentioned below please don’t hesitate to contact our law offices.
If I would like to work in the United States, can I just apply for an H-1B visa by myself?
You must have a job offer from a U.S. company or organization to apply for an H-1B visa. If you are a business owner, you will need to set up an entity within your company that has control over your employment. That entity must file the petition on your behalf.
If I have an Associates (two-year) degree plus one year of work experience as an engineer, can I qualify for the H-1B visa?
You must have at minimum a U.S. bachelor’s (four-year) degree or its equivalent in order to qualify for the H-1B visa. In regards to work experience, three years of working is equal to one year of university so say you had six years of work experience plus two years of college, you could qualify. Moreover, your work experience and degree should be relevant to your occupational title.
I currently have a job with a public-school system as a teacher. Are schools subject to the annual quota?
Only if the school district has an approved petition based on the University cap exemption after 2006.
Are there provisions for the continuity of H-1B petitions in case there is a restricting of the company?
There is continuity in this case—in other words, an amended H-1B petition isn’t required when a new entity takes over the interests and responsibilities of the originally approved employer and whereas the conditions of employment are the same.
How does my employer (under section 105 portability provisions) complete the I-9 verification requirement?
This example is comparable to the 240-day grace period of 8 C.F.R. section 274.12(b)(20), which permits employment with the same employer for up to 240 days after an extension petition is filed.
Can I file multiple or duplicate petitions? What happens if I do?
Based on the interim rule which was announced in 2008, employers may not file more than once or duplicate H-1B visa petitions for the same employee. In order to ensure fairness, USCIS will deny multiple or duplicate petitions filed by an employer for the same H-1B worker.
Will I be refunded the fees for filing twice?
You will not receive a refund for these filing fees. The only time that a refund will be issued is:
- If the USCIS has asked for an unnecessary form that required a fee
- If the USCIS has asked for a fee that was greater than what is listed
- If the USCIS fails to process a petition filed with premium processing in the 15-day time period.
Where do I mail my H-1B petition?
Your lawyer should have the information for the correct service center to file with which will depend on the beneficiary’s work locations specified on the petition application. You can also see this website for more information.
When is the H-1B visa 2019 lottery date expected?
Last year the automated lottery took place on April 13th. While we can’t ensure that it’ll be on the same date for the H-1B visas 2019 season, we do predict it’ll be shortly after the season opens.
What are the advantages of preparing early?
There are many advantages to preparing early. As with most situations in life, when you plan ahead of time you’re better able to respond to challenges down the road. When it comes to employers, they can begin considering which one of their workers might require H-1B cap-subject filings. Foreign nationals and their respective employers should work side-by-side throughout the process to ensure all criteria are met.
What is the length of stay on an H-1B?
This visa is granted for up to three years with the option to extend it to a maximum of six years. There are select cases in which you may be granted a stay longer than six years. This is usually in conjunction with a pending I-140 petition so that you can maintain your status.
What are the H-1B visa fees?
The petitioner and/or sponsoring employer are responsible for paying the following fees to USCIS:
- Employer Sponsorship fee
- Premium Processing Fee (optional)
- Fraud Prevention and Detection Fees
- Filing Fee
What fees are my employer responsible for?
Per immigration law, the employer is responsible for paying the training fee (when it applies) and the fraud fee.
If I filed for premium processing could I avoid being subject to the cap?
Filing for premium processing does not make you exempt from the cap. Premium processing is simply a way to expedite the process. USCIS specifically ensure 15 calendar day for processing those petitions OR USCIS will issue a refund of the service fee.
Who is responsible for setting the cap amounts?
Congress determines the current annual cap for the H-1B visa category. Also remember that in accordance with the Free Trade Agreement, 6,800 visas are set aside for citizens of Chile and Singapore.
Certain H-1B workers who perform services for the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the cap if their employers file their petition before December 31, 2019. Note that employers may not file a petition or exemption request for an employee more than six months before the intended start date.
What is a Labor Condition Application (LCA)?
A Labor Condition Application is what your employer must certify and send at the time of filing your petition. A copy of this document is also accepted. Always be mindful of the LCA processing times and plan your documentation accordingly.
To get an LCA, your employer must make all of the four attestations required for this application:
- That the H-1B employee will be paid the prevailing wage for the requested position according to the geographic location of the position.
- That the employment of the H-1B employee will not negatively impact the working conditions of the current employees working for the employer.
- That the employees that are currently working for the employer have been notified of the intent to hire the H-1B employee.
- That the location in which the H-1B employee will be working is not under a strike or a lockdown.
Ultimately, the LCA serves to protect the current employees from incursions on their employment. By attesting that your employment is not to subvert or replace the work of current employees, this tells the USCIS that your employment will benefit the U.S. job economy rather than damage it.
Note that if the application is certified for multiple workers, you’re required to give the name and case receipt number of any worker who has previously used the LCA.
Am I permitted to have more than one sponsor for H-1B Visa 2019?
According to current regulations, if you as the foreign worker intent to perform services for more than one employer, each one is required to file a separate petition. If you then receive both petitions approved and select one employer but later decide to leave that employer for the second one, then no new petition is necessary.
However, if you choose to transfer your employment to an employer that has not yet filed a petition, you will need to have that employer file a new petition on your behalf.
How do I speed up or expedite my H-1B transfer?
An H-1B transfer must follow the same process as you would for filing a new petition. One big difference between the regular H-1B filing and a transfer is that a transfer is not subject to the cap since the individual already has H-1B status. Because of this, premium processing may be an effective way to shorten your H-1B transfer processing time in 2019.
Will the USICS suspend premium processing in 2019?
That cannot be said for sure. In FY 2019, the premium processing service was suspended for all H-1B visas filed for that cap season. This was to allow the USCIS to address the backlog of petitions that were not filed with premium processing. You can check our blog or read the USCIS news updates to see what the status is on premium processing for this upcoming season.
Can I work for my employer anywhere in the country once my status is approved?
When USCIS approved your H-1B visa, they took into consideration the specific location of employment as well as the qualifications the employer specific as well as the prevailing wage for the area.
During your employment, if the work site changes, you must submit an amendment with certification for the new location. In some situations, you may be exempt from filing the amendment but it’s best to contact your lawyer if the terms of your employment suddenly change.
Is there a reason some H-1B petitions take longer than others?
Why? Each USCIS service center has a different workload for H-1B visa 2019 so it’s hard to know when the paperwork will be processed. For cases that are short on time, it’s best to consider premium processing.
How Can We Help with your H-1B Visa 2019 Case?
SGM Law Group has an excellent track record of gaining approvals in complex H-1B cases, including those sponsored by startup companies. We specialize in employment-based immigration and our attorneys have extensive experience in devising creative strategies to overcome unique challenges faced by candidates from smaller technology companies among many others. We ensure that all the paperwork and documentation is completed accurately and presented in the best possible way to maximize your chances of approval.
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Get Your Immigration Consultation for H-1B Visa 2019
As a courtesy to our prospective clients, we offer free consultations to certain individuals and businesses who are looking to retain a law firm for employment-based immigration petitions. Please note that you MUST complete our online consultation form, describing your current situation, to see if you qualify for a free consultation.
NOTE: For those who prefer a visual overview of the H-1B process, take a look at this helpful video that compliments this post: (This older video provides a high-level overview but does NOT contain the recent updates, including Masters lottery order reversal and Lottery Pre-registration system)
Related H-1B Visa 2019 Topics
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