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Immigration Updates: H-1B Status and 2020 Changes

H-1B Premium Processing

United States Citizenship and Immigration Services (USCIS) resumed premium processing for all Fiscal Year 2019 H-1B cap petitions. Those still awaiting a decision on their cap petitions filed in April 2018 may contact our offices to prepare a premium processing request for a $1410 USCIS filing fee. Premium processing remains unavailable for most other H-1B petitions. In addition to 2019 cap petitions, H-1B extensions for continuation of previously approved employment without change with the same employer and cap-exempt petitions filed by colleges, universities, related nonprofit or government research organizations are the only H-1B petitions currently eligible for premium processing. 

Government Shutdown Impact

The government shutdown did not affect the processing of USCIS petitions, but we are experiencing very slow processing times across petitions. USCIS recently confirmed that E-Verify has resumed operations following the government shutdown and employers who hired employees while E-Verify was not available must now create an E-Verify case by February 11, 2019. Employers are advised to use the date of hire from the employee's Form I-9 when creating the new case. If the case creation date is more than three days after the employee began working, please select "Other" from the drop-down list and enter "E-Verify Not Available" as the reason.

2020 Cap H-1B Petitions

Employers may first apply for Fiscal Year 2020 H-1B visas for individuals not currently in H-1B status on Monday, April 1, 2019 for a start date of October 1, 2019. USCIS received approximately 190,098 H-1B petitions during the first week applications were accepted for the Fiscal Year 2019 H-1B visa cap and conducted a random lottery to select the 85,000 petitions for the H-1B cap (65,000 for the general category and 20,000 for the US advanced degree category).

This H-1B cap limitation does not apply to extensions of H-1B status, those obtaining H-1B status to teach at colleges, universities, related nonprofit or government research organizations or J waiver physicians.

Effective for the Fiscal Year 2020 filing season and future cap H-1B seasons, USCIS is reversing the order by which H-1B petitions are selected under the H-1B cap and advanced degree exemption. USCIS will first select H-1B petitions submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions. This will result in an increase in the number of selected beneficiaries with a US master's degree or higher.

Employers should contact us by early March to begin preparing H-1B petitions to be submitted by April 1, 2019.

Changes Next Year To Cap H-1B Process

In 2020, H-1B cap-subject petitions must be registered electronically with USCIS during a 14-day period in late March with employer's name, EIN, address, beneficiary's name, date and country of birth, citizenship, passport number and education and attorney information. This process is limited to one registration per beneficiary. USCIS will then conduct its annual lottery from the pool of timely-filed electronic registrants. Selected registrants will have 60 days from selection notification to submit the corresponding H-1B petition. Please note that the electronic registration requirement will not be implemented for the upcoming FY 2020 H-1B filing season. This year complete petitions must be submitted on April 1, 2019 to be considered for the lottery. USCIS expects to begin using the electronic registration system for the FY 2021 filing season beginning April 1, 2020.

© 2019 Varnum LLP


About this Author

Kimberly A. Clarke, Varnum, Immigration Lawyer

Kim focuses her practice on immigration matters, including nonimmigrant petitions, both employment- and family-based permanent residence applications, expatriation and foreign visa issues. She has developed a strong background in the area of worker verification issues and managed clients through internal and agency Form I-9 audits, USICE compliance investigations and civil criminal charges.

In addition, Kim maintains a specialty practice of consultation with agricultural clients and handles various agricultural labor and employment issues such as compliance with...

Yvonne Kupfermann Employment Lawyer Varnum Law Firm Grand Rapids

Yvonne focuses her practice primarily on employment and family-based immigration in addition to general corporate matters. She assists clients with employment and family-based permanent residence petitions, including the labor certification process, visas for extraordinary ability, and multinational managers and executives petitions. She focuses on visa processing, waivers, DACA and citizenship matters. Additionally, she has experience in general corporate matters, including LLC formation.

Nina A. Thekdi, immigration lawyer, Varnum

Nina focuses her practice on business and family-based immigration matters.  Her experience encompasses nonimmigrant visa petitions including H-1B visas, L-1A and L-1B visas, TN visas under the NAFTA treaty, and O-1 visas. She also assists clients with employment-based permanent residence petitions including the labor certifications process, EB-1 extraordinary ability, EB-1 outstanding professor and researchers and EB-1 multinational managers and executives petitions; family-based permanent residence applications; naturalization applications; and foreign visa issues.   ...