Premium Processing Allowed for Certain H-1B Cap Cases; What are the Anticipated Cap Timelines?

USCIS has announced that they will allow premium processing for new FY2020 H-1B cap cases to be filed on April 1, 2019; however, this will be done in a two-phased approach.     H-1B cap petitions requesting change of status can be filed concurrently with a request for premium processing on April 1, 2019.     Premium processing for H-1B cap cases requesting “consular processing” will be reinstated at a later time (June or later).

H-1B Cap Cases Requesting Change of Status and Modified 15-day Processing Window

Starting April 1, FY2020 H-1B cap petitions requesting a change of status may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service. Petitioners must appropriately select response “b” for Item 4 in Part 2 of Form I-129 to be eligible to concurrently file Form I-907.

However, in order to be able to complete prompt data entry for cap-subject H-1B petitions, USCIS will not begin the premium processing service for these petitions immediately.  Instead, USCIS will begin premium processing for these petitions no later than May 20, 2019.

If a petitioner does not file Form I-907 concurrently with an FY 2020 H-1B cap-subject petition requesting a change of status on April 1st, the petitioner must wait until premium processing processing window actually begins (in mid-late May)  to submit Form I-907.  Until premium processing begins for these petitions, USCIS will reject any Form I-907 that is not filed concurrently with a cap-subject Form I-129 on April 1st.

H-1B Cap Cases Requesting Consular Processing

Premium processing for all other FY 2020 cap-subject H-1B petitions will not begin until at least June 2019.  Cap-subject petitioners not requesting a change of status may not submit their premium processing request concurrently with their H-1B petition. These petitioners will be eligible to upgrade to premium processing by filing Form I-907 only once premium processing begins for this group.  USCIS has indicated that they will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status.

Anticipated H-1B Cap Process Timelines

We expect that the FY2020 H-1B cap filing window to last only 5 business days – April 1st to April 5th – as it appears that the demand will exceed the available total of 85,000 H-1B visas.    Since we do not know exactly how many cases will be filed during this narrow filing window, we do not know exactly how quickly with USCIS move along with the case intake and review process.   But here are some estimates which are based on our experience and prior years.

April 1-5.    H-1B cap filing window.   Cap likely reached on April 5th.

April 10-20.   H-1B lottery completed; receipting period begins.

April 20 – May 15.   Email receipts issued for selected H-1B cap cases filed with premium processing.

May 1 – June 1.  Receipting for selected H-1B cap cases (premium and regular processing).

May 15 – May 20.   Premium processing begins for H-1B cap cases – with USCIS to provide response within 15 calendar days.   H-1B cap cases requesting “change of status” and not filed with premium processing on April 1st can be upgraded to premium processing.

June – July.   USCIS starts mailing back petitions not selected under the random lottery.

July.   USCIS to allow premium processing upgrades on H-1B cap cases filed with “consular processing”.

June – September.  USCIS to attempt to review most non-premium processing H-1B cap cases with cases of F-1 students generally being given higher priority due to the F-1 OPT cap-gap rule.

Conclusion

We have been writing over the past few weeks about the possibly very short H-1B cap filing season this year.   Given the time it takes to prepare and file an H-1B cap case,  we are starting to run out of time but if you wish to consider making a case or if our office can be of any help, please contact us immediately.

We will be providing updates throughout the next few weeks on the H-1B cap.  To ensure you receive these updates, please sign up to our free weekly newsletter.