The lottery window for H-1B Cap Petitions opens up on April 1st, 2019, leaving employers just a few weeks to file H-1B petitions for foreign nationals requiring work authorization for the fiscal year beginning October 1, 2019. Because time is running out, employers interested in sponsoring their employees need to start the process immediately.
The number of new H-1Bs is capped at 85,000 for each fiscal year, with 65,000 available to those with bachelor’s degrees and 20,000 for those with master’s degrees from U.S. institutions. Petitions received by United States and Citizenship Services (USCIS) during the first five business days in April will be included in a lottery if the number of petitions exceed 85,000. Based on prior years’ experience, it is virtually certain the total 85,000 total will be met.
Even if a petition is selected in the lottery, however, it will face greater scrutiny than in the past as a result of President Trump’s 2017 “Buy American and Hire American” executive order. Two things employers should be aware of during this H-1B Cap Season: 1) an expected increase in the number of Requests for Evidence (RFE) that USCIS will issue and 2) a new calculation method used to select petitions participating in the lottery.
The rate by which USCIS issues RFEs has increased dramatically in the last few years. By the end of 2017, RFEs were being issued in close to 70% of all H-1B applications filed, which is a 45% increase from the first quarter of 2017. Common reasons that USCIS issues RFEs relate to whether the application qualifies as a specialty occupation, whether the wage level is appropriate, and whether the beneficiary has a bachelor’s degree in a field directly related to the position. Employers can show that an individual’s position qualifies as a specialty occupation by gathering detailed information of the job description and duties to ensure that they are specific and relatable to the beneficiary’s position.
In recent years USCIS has scrutinized H-1B positions filed as wage Level 1, the lowest prevailing wage category employers are required to pay their H-1B employees. USCIS has contended that by their very nature, those positions weren’t sufficiently specialized to qualify as a specialty occupation. Consequently, employers should make sure they select a wage level that equals the level of experience, responsibility, and supervision required by the H-1B occupation. In addition, USCIS is more often questioning whether the beneficiary of an H-1B petition has a bachelor’s degree in a specific field directly related to the position. The result has been a narrowing of the number and types of degrees USCIS has found acceptable for the position. It is important for employers to pick a Specialty Occupational Classification (SOC) code which aligns with the job duties, wage, and education of the beneficiary.
New Master’s Cap Order
USCIS is also implementing a change in the way it selects H-1B Cap Petitions participating in the lottery that will increase the number of individuals with master’s degrees selected. First, all beneficiaries eligible to file for the H-1B visa will be considered to be randomly selected by a computer, including those eligible for the advanced degree exemption (master’s degree or higher) to fill 65,000 slots. Then, USCIS will select the remaining 20,000 petitions under the advanced degree exemption. This will benefit applicants holding a master’s degree or higher, and will likely be detrimental to employers seeking to fill positions that require only bachelor’s degrees.
With the increased number of RFEs and new rules in place, it is important for employers to be cautious and precise in preparing H-1B petitions this season. For more information or guidance, contact an attorney at Minsky, McCormick & Hallagan.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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