Submitted by Peckar & Abramson, P.C.

The H-1B visa category allows U.S. employers to temporarily hire foreign nationals to work in “specialty” or “professional” occupations. Congress caps the amount of new H-1B visas at 85,000 per fiscal year, with 20,000 set aside for individuals with a U.S. Master’s degree or higher (“the advanced degree exception”). The next fiscal year begins on October 1, 2019, and H-1B petitions can be submitted six months in advance of a new fiscal year. Between April 1-5, 2019, USCIS received 201,011 H-1B petitions, which is significantly more than the allotted number of visas. A lottery has been conducted to determine which petitions will be adjudicated by U.S. Citizenship and Immigration Services (“USCIS”).

This year’s lottery was conducted differently than in past years. In previous years, the 20,000 set aside for the advanced degree cap was handled first, then the advanced degree petitions that were not selected carried over to the regular cap lottery (the 65,000) with all the rest of the cap-subject H-1B petitions. This year, all of the petitions were first run through the 65,000 regular cap, then the remaining advanced degree petitions were run for the 20,000 advanced degree slots. USCIS expects this seemingly subtle change will result in a marked increase of advanced degree petitions being accepted in the lottery (approximately a 16% increase). Prioritizing “the most-skilled or highest-paid beneficiaries” is consistent with President Trump’s “Buy American, Hire American” Executive Order.

Premium Processing this year will also be handled differently than in FY2019. If you recall, last year Premium Processing was suspended so that USCIS could handle the backlog of H-1B petitions that had accumulated. This year, USCIS will allow Premium Processing for cap-subject petitions using a “two-phased approach.” For cap-subject petitions requesting a change of status (for instance, a change of status from F-1/OPT to H-1B), Premium Processing could have been requested concurrently with the initial H-1B filing or can be requested after the fact beginning May 20, 2019. Premium Processing of all other H-1B petitions will not begin until “at least June 2019.”

While USCIS will no longer accept cap-subject petitions, it will continue to accept and process petitions that are otherwise exempt from the cap, such as “H-1B transfers” filed on behalf of individuals who have already been counted against the cap and want to change employers, or H-1B extensions for employees whose H-1B approval period is running out. USCIS will also continue to accept H-1B petitions from cap-exempt employers.

Employers whose petitions were selected in the lottery will receive a receipt notice, indicating that they have been submitted for processing. In recent years, receipt notices have been mailed between mid-April to June due to the high volume, and the same is to be expected this year. Employers whose petitions were not selected will receive a rejection notice, and the Form I-129 petition/filing fees will be returned in full.

F-1 students working with optional practical training (“OPT”), who are beneficiaries of a pending or approved H-1B petition, will have their work authorization automatically extended through September 30, 2019. OPT students not accepted in the lottery whose status is expiring this summer will need to explore other options to stay in the U.S. and/or continue working. To wit, any employer whose petition is not accepted in the lottery should consider whether another visa is available for the desired worker.

Employees seeking change of status should remember that international travel will adversely affect the change of status request. Any travel should be discussed with an immigration attorney before you leave the U.S.

For more information, please contact: 

Michael J. P. Schewe, Esq.

Senior Counsel | Peckar & Abramson, P.C.

70 Grand Avenue | Suite 200 | River Edge, New Jersey 07661

office 201.343.3434 x2103

mschewe@pecklaw.com | www.pecklaw.com