In a rare stroke of good immigration-related news for employers, USCIS has announced that it will implement electronic registration for cap-subject H-1Bs for the FY 2021 filing season, saving employers the time and expense of preparing full H-1B petitions prior to knowing whether those petitions will be accepted under the cap.  Online registration will begin March 1 and end March 20, 2020.

The prior cap system required the preparation and submission of a full H-1B petition for every applicant, which involved submitting a Labor Condition Application to the Department of Labor, completing all USCIS forms, obtaining degree translations and evaluations if applicable, compiling supporting documentation, and paying the government filing fees.  Thereafter, the applicants were subjected to a lottery and only those petitions selected were actually reviewed and adjudicated.  The remainder were returned to the petitioning employer, rendering the time, effort, and expense of the petition preparation moot.

Under the new electronic registration system, employers will register online with USCIS and pay a $10 fee for each potential cap-subject beneficiary.  USCIS will then conduct the cap lottery and notify employers as to which beneficiaries were selected.  Only then will employers prepare and submit actual H-1B petitions.

While this advance in efficiency is certainly welcome and long overdue, there is a strong possibility of technical issues with the launch of the system, and USCIS has reserved the right to revert back to the old cap system.  As a result, employers are encouraged to connect with immigration counsel now to identify and discuss potential candidates and assess any status issues and contingency plans.

On July 24, USCIS published a final rule making several major changes to the EB-5 Immigrant Investor Program effective November 21, 2019.  Those changes include:

1. Raising the minimum investments amounts from $500,000 to $900,000 for projects in a targeted employment area (TEA) and from $1 million to $1.8 million for non-TEA projects.  This change marks the first increase since the program was created in 1990.
2. Transferring TEA designation responsibility from the states to the Department of Homeland Security in an effort to combat perceived gerrymandering of TEAs and incentivize more projects in rural and high unemployment areas.  This change will likely result in fewer TEA projects, making it more difficult for investors to qualify for the lower investment amount.
3. Allowing EB-5 investors to keep their priority date if they have to file a new petition to change their underlying investment.  This change may be of only limited benefit to investors who filed their original petitions prior to the effective date of the rule change, as their new petitions will require the new, higher investment amounts.
4. Clarifying removal of conditions procedures by confirming that family members  who were not included in a principal investor’s petition to remove the conditions on their permanent residence must file independent petitions of their own.

Prospective investors seeking to take advantage of the EB-5 program as it stands now have less than four months to file petitions.  Please contact our office if you have questions or would like to discuss your options.

Long processing delays of all applications and petitions for immigration benefits are now considered to be at “crisis levels,” prompting a bipartisan group of 36 U.S. senators to write USCIS for an explanation and action plan.   The below summarizes this frustrating trend:

Read the letter here:

The filing window for Cap-Subject H-1B petitions for Fiscal Year 2020 will open on April 1, 2019.  Petitions filed later than the first week of the filing period are unlikely to be considered, so employers with a need for H-1B workers should contact their attorney as soon as possible to begin preparing these petitions and composing a Plan B for employees not selected in the expected lottery.  Additional preparation time will also be necessary in light of the current difficult adjudication environment, particularly for Level 1 wage and analyst-type positions.   Early assessment of options and strategy will continue to be essential.

Over the last six years, the 85,000 petition Cap (65,000 for regular petitions and 20,000 for U.S. Master’s degree petitions) has been reached within the first week of the filing period.  For FY 2019, approximately 190,098 H-1B petitions were filed during the first week. USCIS used a computer-generated random process to select the 85,000 petitions eligible for adjudication, leaving an approximately 45% chance of selection.  Petitions not selected in the Cap lottery were returned with filing fees, and unsuccessful applicants must wait until the next April to apply again or find an alternative route to employment authorization.

It is possible that Fiscal Year 2020 filings will benefit from a new pre-registration system proposed by USCIS in November 2018.  The proposed rule would require H-1B petitioning employers to first electronically register with USCIS.  The Cap lottery would be conducted for those electronic registrations without actual H-1B petitions filed.  Those selected in the lottery would be notified, and petitions would then be prepared and accepted.  This system would be a boon to employers, as Cap decisions would be made much more quickly and petitions would only need to be prepared for applicants actually selected in the Cap (under the current system, petitions are prepared for all applicants and the Cap decision is issued several months afterward).  Regulations implementing the proposed rule have not been finalized, so employers should continue to work with counsel to prepare Cap-subject H-1B petitions as usual.  That advance preparation will allow for quick and decisive action if the proposed rule is implemented in time for the Fiscal Year 2020 season.

The 2020 Fiscal Year runs from October 1, 2019 to September 30, 2020.  Employers will be able to submit new H-1B petitions to USCIS beginning April 1, 2019 (six months before the start of the 2019 Fiscal Year).  Approved beneficiaries can begin their H-1B employment on October 1, 2019.  If, as we expect, the Cap is reached during the first week of the filing period, any petitions received after the first week of the filing period will not be considered, and any petitions not selected in the lottery will be returned.

Early discussions with your immigration attorney can identify alternatives to the H-1B route, potential roadblocks in the preparation of an H-1B petition, and contingency plans in the event of an unsuccessful lottery.

Assessing Your Cap-Subject H-1B Needs

H-1B visas are available for specialty occupations requiring a bachelor’s degree or its equivalent.  For current or transferring employees, employers should consider the following to determine potential FY 2020 H-1B applicants:

• Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need to change status to an H-1B;
• Determine whether any TN employees (NAFTA professionals) or H-1B1 employees (citizens of Chile or Singapore) might want to an H-1B to be eligible to apply for adjustment of status to permanent residence;
• Review those employees with expiring O visas (renewable in only one year increments rather than the three year increments available to H-1B visa holders);
• Check whether your transferring employees who currently hold H-1B status have already been counted against the Cap (note that any employee transferring over from an employer exempt from the H-1B Cap may now be subject to the Cap);
• Consider whether you employ someone in L-1B status who might need to switch to an H-1B to gain an additional year of status.

Cap-Exempt Circumstances

Employers or beneficiaries in the following categories may be exempt from the 85,000 numerical limit:

• Higher education institutions and related non-profits;
• Non-profit or government research organizations;
• Beneficiaries who have held H-1B status in the last six years, but have not exhausted their entire six-year period of stay.

Please contact us if you’d like to discuss your H-1B hiring needs. The earlier we hear from you, the more time we have to evaluate, plan, and develop strategies for success.