As 2018 draws to a close and much of the world is celebrating the holiday season, the immigration world is preparing to enter another H-1B lottery season. For an overview of the H-1B program and H-1B lottery, please see our December 3 blog.

Current H-1B Adjudication Trends

Until last year, receiving a Request for Evidence (RFE) was the exception rather than the rule and a denial was a rare occurrence. Now, it is fairly common for an H-1B petition to result in the USCIS’s issuance of a lengthy RFE; moreover, even after submission of a comprehensive RFE response, the possibility of denial is ever present.  We fully expect that this trend will continue in 2019. In light of this, it is paramount that employers keep the following common challenges in mind while preparing for the upcoming H-1B lottery season:  

1. Specialty occupation: USCIS requires employers to establish that the offered H-1B position requires at least a bachelor’s degree in a “specific specialty” that is directly related to the offered position. Gone are the days that USCIS would accept an employer’s general description of job duties and responsibilities or unsupported assertions about a position’s educational requirement.  Instead, USCIS now expects extremely detailed descriptions of actual tasks performed, and the percentages of time spent on each task. In addition, USCIS expects a close nexus between the sponsored employee’s academic field of study and the position’s actual duties and responsibilities. Lastly, USCIS often questions an employer’s degree requirement that is seemingly too general (i.e., business) or unrelated (i.e., engineering) as insufficiently specialized for H-1B purposes.
2. Availability of H-1B work: USCIS requires employers to establish that there is a sufficient supply of specialty occupation work available for the requested H-1B validity period. This type of RFE, formerly limited to contractor or third-party placement situations, now extends to traditional in-house employment.
3. Employer-employee relationship: USCIS requires employers to show a valid employment relationship between the employer and the H-1B worker such that the employer has the right to control the H-1B worker’s work; indicia of control may include the ability to hire, fire, and supervise the employee. This type of RFE most often arises when the employee works remotely or is placed at a third-party or client site.
4. Wage survey: An employer must pay an H-1B worker either the prevailing wage or the actual wage, whichever is higher. The Department of Labor (DOL) allows use of an independent wage survey to establish the prevailing wage for a particular position in a particular location if the survey meets the regulatory requirements. USCIS, however, has begun to scrutinize the use of wage surveys, often asking for proof that the occupation listed in the survey is comparable to the H-1B position.

H-1B Pre-registration Proposed Rule

Further complications and uncertainty for the upcoming H-1B season arose on December 3, when the Department of Homeland Security (DHS) published a notice of proposed rulemaking that would change how employers file cap-subject H-1B petitions and how USCIS conducts the H-1B lottery process. The proposed rule would require petitioners seeking to file H-1B lottery petitions to first electronically register with USCIS during a designated registration period. The proposed rule would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption. The 30-day comment period for the proposed rule ends 01/02/2019. USCIS has indicated it would like to finalize and implement the regulation and the electronic registration system in time for the opening of the upcoming H-1B cap filing season on April 1, 2019. However, the likelihood that USCIS will finalize both by April 1, 2019 is probably slim, given the tight timeframe by which the agency must complete the regulatory process. Given the uncertainty and timing, employers should plan to prepare H-1B cap subject petitions for filing on April 1, 2019 as they have in the past.

Next Steps

In preparation for the H-1B filing season, employers should now be identifying current or prospective employees who may require the filing of an H-1B petition on April 1, 2019.  Typically, such persons fall into one of the following groups:

1. foreign students in the U.S. with F-1 status who either will be hired by the employer or are currently working for the employer utilizing their Optional or Curricular Practical Training employment authorization;
2. employees in other non-immigrant statuses (such as TN, L, E, J, H-4 with EAD, or others) who wish to change their status to H-1B;
3. persons who are currently outside of the U.S. who the employer wishes to employ in the U.S.; and
4. employees for whom H-1B petitions were filed in past years but who were not selected in previous lotteries. 

Please note that it is more important than ever to plan in advance and allow plenty of time for the preparation of H-1B petitions to be filed on or about April 1, 2019. Employers should work with their immigration counsel to evaluate the viability of each H-1B petition based on current adjudication trends and standards, and to develop strategies to successfully navigate the increasingly complex H-1B process.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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