U.S. Citizenship and Immigration Services (USCIS) has updated its H-1B pre-registration policy for the upcoming cap season and clarifies new developments related to H-1B processing. In this alert, we explore how each of these impacts business immigration today.
Pre-Registration Requirement for April 2019 H-1B Cap Season Postponed
On January 30, 2019, USCIS issued a final regulation overhauling the registration and selection process of H-1B cap-subject filings. Commencing in April 2020, H-1B petitioners who are subject to the 65,000 mandated visa cap by Congress and the advanced degree for U.S. universities will be required to complete a simple online pre-registration form with USCIS. Only those applicants selected through the USCIS pre-registration lottery will proceed with full H-1B visa petition filings.
While this will save an inordinate amount of time for U.S. employers selecting foreign nationals for H-1B visa processing, the online registration process may also encourage smaller companies and firms to file more H-1B petitions as they will not have to undergo the rigorous and full H-1B filing process prior to April 1 each year.
For the upcoming cap filing period of April 1, 2019, USCIS will still reorder consideration in the lottery selection, reversing the order of cap selection to the bachelor’s degree holders first, which will include master’s cap cases. Once all bachelor’s cap selections are made, then the master’s degree petitions will be selected. USCIS has indicated that through this reversal in selection, more master’s degree cap cases are likely to be selected, thus fulfilling the “Buy American, Hire American” presidential order.
There is disagreement with respect to whether H-1B provisions of the Immigration and Nationality Act permit inclusion of the master’s cap cases within the initial bachelor’s degree selection process. Legal challenges might ensue, which could delay the implementation of the pre-registration requirements for the April 2020 filing period.
Premium Processing for H-1B Cap Cases Resumed by USCIS in Limited Circumstances
Commencing January 28, 2019, USCIS announced that it would begin accepting premium processing H-1B cap cases for fiscal year 2019.
Premium processing, which imposes an additional $1410 on top of the standard H-1B filing fees, guarantees that an H-1B submission will be processed within 15 calendar days of receipt of the petition. Adjudication of a petition entails either issuance of an approved petition or a request for further evidence from USCIS.
This resumption applies only to H-1B petitions that were submitted in the first week of April 2018. Premium processing for all other H-1B petitions, including those for the upcoming filing period for fiscal year 2020 (to be filed in April 2019), H-1B changes of employer requests, H-1B extensions with changes of employment and H-1B amendments remain ineligible for premium processing handling.
Without premium processing, USCIS states that H-1B processing times are taking approximately 8-11 months for review. The premium processing option has proven to be a boon for employers and foreign nationals wishing to hire qualified foreign talent and secure expeditious petition approvals in situations where the foreign national commences employment with a new employer, or is assigned new job duties or other material changes in employment. With the suspension of premium processing, it has become risky for employers who may have to wait many months to bring on new hires, delaying portability in the H-1B visa context for many.
Premium processing remains available for H-1B cap exempt petitions filed by institutions of higher education and government research entities.
USCIS further states that it intends to resume premium processing for the other still-ineligible categories mentioned above once the workload of the agency permits it. USCIS set an original deadline of February 19, 2019 to lift the ban and resume premium processing in all H-1B filing categories. It remains to be seen whether USCIS will honor its original statement of intent or if it will continue to limit premium processing filings.
We will keep you posted on these and other fast-breaking H-1B visa developments.
