As mentioned in a previous article, the United States Citizenship and Immigration Services (USCIS) is currently reviewing a proposal to make significant changes to the H-1B cap process for FY 2020. These proposed changes may include a new filing system that requires a pre-registration, a brief filing period, a waiting list, and prioritizing advanced-degree H-1B cap petitions in the lottery.

At this time, it is unclear whether these proposals will be implemented by USCIS in time for the FY 2020 H-1B cap season beginning on April 1, 2019. As is customary procedure, USCIS is currently accepting public comments on the proposal through January 2, 2019. After consideration of public feedback and receiving federal approval, USCIS will be able to begin implementing some or all of the proposed changes.

What Might Happen in 2019?

Though it is difficult to forecast, the following are possible scenarios for the FY 2020 H-1B cap season beginning on April 1, 2019:

  1. There will be no changes to the procedures for H-1B cap petitions, either because of a deferral of implementation or a change of course by USCIS.
  2. Changed procedures for H-1B cap petitions will be implemented, but specifics may not be known until just before the filing season opens.
  3. A new pre-registration procedure is implemented, and employers will be given a short window (of approximately 60 days) to file only cases that are selected during this pre-registration period.
  4. The new pre-registration procedure is not implemented, but a change in prioritizing advanced-degree H-1B cap petitions is implemented which will give advanced-degree holders approximately 15% probability increase to be selected.

What can employers do now?

Although some or all of the above changes might be implemented to the H-1B cap procedures, as always, employers should start working with SW Law Group on their FY 2020 H-1B cap cases as early as possible. Over the past several years, given the increased scrutiny and stricter interpretation of H-1B qualifying “specialty” occupation, advance preparation has proved to be crucial to successfully filing H-1B cap petitions, and it is even more critical for FY 2020.

Employers should:

  • Plan for FY 2020 H-1B hiring needs. The earlier an organization is able to plan for hiring needs and a number of petitions they plan to file for FY 2020 will help in the overall coordination with SW Law Group, timely filing, and realistic budget planning and management.
  • Prepare Labor Condition Applications (LCAs) early. LCAs are mandatory for H-1B petitions and they require a processing time that could hinder the timely filing of a petition too late in the cap season. You can read an earlier article that provides guidance about preparing LCAs early for the H-1B cap.
  • Start gathering evidence for the H-1B cap petitions early. This can be a time consuming task, and missing or incomplete documents can result in unsuccessful petitions or delays. Work with your immigration counsel to ensure that all of the pertinent and required documentation and evidence is gathered well before the H-1B cap season opens.

Lastly, Don’t panic. The uncertainty about whether significant changes will be made to the H-1B cap process can be an occasion for concern and anxiety for employers and foreign nationals. Do your best to stay informed and prepare as much as you can in advance to be able to best adjust to whatever changes are implemented for FY 2020.

SW Law Group is more than happy to speak with you about questions you may have about the H-1B cap change proposals. Please do not hesitate to contact our office.