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H-1B Cap Season – What You Need To Know

Rashmi Shah

The H-1B Cap Season – What You Need To Know

Are you an employer who doesn’t know about the H-1B cap? Or are you a seasoned veteran, and the H-1B cap application process doesn’t intimidate you in the slightest? Whether you’re doing an H-1B for the first time or the 100th time, this article is for you.

To summarize, the H-1B visa is for positions that are highly specialized in nature and requires a person to have at least a Bachelor’s degree in a field related to the position or related years of work experience.  The USCIS allows 65,000 new H-1B visas a year with an additional 20,000 to those students who have at least a U.S. Master’s degree.

During the H-1B ‘cap’ application process, U.S. employers can sponsor all types of professional workers, whether they are outside the U.S., or in the U.S. in another immigration status such as F-1, J-1, H-4, L-1, L-2, EAD etc.  The H-1B cap application process occurs only once every year in April. This year, the USCIS has an electronic registration process that we will describe below.  However, it’s likely that H-1B applications will again go through a random lottery selection process.

What is the lottery?

Since the H-1B numbers are limited and the demand for these visas is very high, the number of filings every year typically exceeds the numerical limit described above.  Thus, the USCIS conducts a random lottery process to select which 85,000 cases it will process.

Applicants who have U.S. Master’s degrees or higher do have an extra chance to be chosen as they are first put through the lottery for the 20,000 visas for Master’s degree and higher, and then, if not chosen in the first batch, are then placed into the selection process again with the 65,000 non-Masters H-1B visa hopefuls.

All of that being said, you, as the potential H-1B employer, are wondering when to start this process. Does it all just happen in April? No. Not at all.

Most employers now have knowledgeable employees who have alerted them to the employee’s need for an H-1B visa and to apply in the H-1B visa cap. If you are one of those lucky employers to have such an informed employee, then hopefully you’ve gotten in contact with a corporate immigration attorney and are ready to start the process. If you haven’t, then make that your first priority after reading this article!

If you want to sponsor an employee for a new H-1B, it’s best to start the process as early as possible. We typically advise clients to start in December or January.  Thinking about it this way can help you understand the timeline for the H-1B application process.

H-1B Timeline and the Electronic Registration System

In this upcoming H-1B cap season, the process is changing. Historically, employers filed their full, and often voluminous, H-1B cap-subject petitions with USCIS, after which USCIS would select eligible petitions through the lottery. This process resulted in mounds of paperwork and incurred mailing costs for both petitioners and the agency.

Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee.

Under this new process, employers, or their authorized representatives, seeking H-1B workers subject to the cap will complete a registration process that requires only basic information about their company and each requested worker. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B lottery process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

Starting in December or January, you should meet with a corporate immigration attorney. They will review the viability of the company and the candidate who will be applying for the H-1B visa with the company as the sponsor. During this initial review, the attorney will review requested documentation and be able to address any issues or concerns regarding the case that may arise when preparing the H-1B application.

During January and February, the corporate immigration attorney may request further documentation in regards to the company or to the H-1B-sponsored employee.

Throughout the month of February, the attorney and the paralegals will set up the company’s electronic registration based on the documentation and information provided. While a Labor Condition Application (LCA) is not required to be completed prior to the electronic registration process, based on the needs of your case, the corporate immigration attorney may determine that it is necessary to prepare and submit LCAs for beneficiaries in advance of the electronic registration process. This will be determined after a review of the case.

From March 1, 2020 through March 20, 2020, USCIS will accept the electronically filed registration(s).

USCIS is expected to use the myUSCIS online portal to house the electronic H-1B registration process. The myUSCIS online portal currently permits online filings of forms such as Form I-90, N-400, N-600, and I-130, among others.

myUSCIS website

 

After the registration process, USCIS will run the random selection process (lottery) on all electronic registrations. 

See our recent blog post on what is expected during the H-1B electronic registration process.

If your electronic registration is selected in the lottery process, the USCIS will allow you to file the actual H-1B application within 90 days.  At this time, your H-1B application must be prepared for filing and submitted to USCIS for review and adjudication. During this time, you may be requested for additional documentation or information regarding the employee, the company, or the H-1B position by the corporate immigration attorney. USCIS released an update via the Federal Register on January 9 stating that USCIS intends to notify registrants with selected registrations from the initial registration period no later than March 31, 2020.”

As of the date of posting, USCIS is expected to accept Premium Processing with all H-1B cap filings. If you file your application with premium processing, then you will receive a decision on the case within 15 calendar days. If you choose to file without premium processing, there is no guaranteed timeline for when the case will be adjudicated.

Conclusion: Start Early

As you can see, the H-1B application process does not begin in April. It does not begin in March or February either. To be giving your employee the best chance at a smooth H-1B cap process, it all begins in December/January. And it starts with you, the employer, speaking to a corporate immigration attorney and getting the information you need to plan the process accordingly.

So, now that you’ve finished this article and are well-versed in the basics of the H-1B cap process, make sure to Contact Us, or another trusted corporate immigration attorney to assist you in the processing of your H-1B cap application.

 

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