2020 H-1B Work Visa Cap Season Is Underway With Major Changes – Lottery Opens for New Registrations March 1, 2020

The new H-1B work visa “cap” season is set to begin with substantial changes to the process, the timelines and the chances for success.

Over the past year or so, U.S. Citizenship and Immigration Services (USCIS) has been working on changing the process of submitting first-time H-1B “cap” work visa petitions and they have just confirmed that all of the pieces of the new system are in place and that the new H-1B cap season will be done substantially differently compared to prior years.

The New H-1B Cap Registration System

The H-1B cap filing will be done in two stages. First, there will be a H-1B work visa registration period where all petitioners seeking to file an new cap H-1B will have to submit an online registration for each beneficiary between March 1st and March 20th. The online registration will be much simpler compared to having to file a fully-prepared and supported H-1B petition like prior years.

Timing of the H-1B Cap Entry Submission.  March 1, 2020 until March 20, 2020. We do not recommend waiting until the last day to submit lottery registration entry to avoid last-minute website crashes, etc.

What Information Will be Required for Each Electronic Entry?   For each H-1B cap visa entry, USCIS will require (1) the employer’s name, employer identification number (FEIN), and address, (2) employer’s representative contact information; (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number; (4) whether the beneficiary has obtained a master’s degree from a U.S. institution of higher education;  and (5) employer’s attorney information.

Even though the information required for an H-1B cap lottery registration is not very extensive, we recommend employers conduct a thorough case evaluation before submitting a lottery entry. For instance, we recommend analyzing the proposed position for specialty occupation and salary/prevailing wage H-1B eligibility. We recommend reviewing the candidate’s credentials thoroughly to properly determine the best cap – regular or U.S. master’s degree – to be used for the registration as this cannot be changed later. We also recommend identifying any timing issues such as F-1 OPT cap-gap, CPT, etc. which may require an urgent filing with USCIS if selected by the lottery.

Lottery Logistics and Order of Selection. Between March 20th and March 31st, USICS will allocate the 85,000 H-1B visa numbers (65,000 plus 20,000 for U.S. master’s degree or higher holders) among the registrations and if the registrations exceed 85,000, there will be a random lottery. USCIS will, for second year in a row under its new practice, change the way it allocates the U.S. master’s degree visas by changing the sequence of the way the lottery is run. Under the current process, USCIS will combine all cap cases (U.S. master’s and regular cap) and allocate towards the 65,000 general cap and then the remaining U.S. master’s degree applications will be allocated towards the 20,000 U.S. master’s cap. According to USCIS, this switch will increase the likelihood of selection for a U.S. master’s degree petition.

What Will Selected H-1B Cap Entries Have to Do?   Once an employer or their attorney receives a selection notice (should be by March 31, 2020), the employer will then be given a period of 90 days to properly file a complete H-1B cap petition.  USCIS may specify different filing windows in an attempt to stagger the filings and to allow for most efficient petition processing and the filing window will be indicated on the H-1B cap selection notification.  The H-1B cap petition will need to include evidence of the random selection and will have to meet all other H-1B cap requirements, including LCA, proper filing fees and forms, and supporting documents.

How Does USCIS Intend to Prevent “Flooding” the System?  The final rule discusses USCIS’s efforts to prevent employers from “flooding” the system in an attempt to gain a higher likelihood of selection.  Since there is only $10 registration fee to submit an entry and since this submission is simpler and has lower overall cost compared to a full H-1B filing, there are concerns that the demand for H-1B cap petitions may actually be dramatically higher compared to prior years. USCIS is clear that one employer can submit only one entry for a particular beneficiary, which is the existing rule for H-1B cap petitions.  Each entry will require an employer attestation that if selected, an H-1B petition will be filed although USCIS seems to admit other than fraud investigation referrals, they may not have very good enforcement mechanisms.  This also does not seems to prevent one candidate getting bona fide job offers from more than one employer and thus having more than one entry filed. See our alert on the ban on multiple H-1B cap filings by related employers.

2020 H-1B Cap Timeline: Cap Season Starts Earlier This Year

With the new registration and lottery done a month earlier this year, the H-1B cap timeline for employers looking to sponsor H-1B cap visa for this year has shifted. Note that the fact that the H-1B cap registration period is between March 1 and March 20 means that the H-1B cap season starts earlier this year. Unlike in prior years, an H-1B case this year has to be initiated by early March and not later than March 20th.

January – early March: Case Evaluation and Lottery Registration Prep.
Identify candidates. Evaluate position for specialty occupation and prevailing wage (salary, worksite, position requirements). Evaluate candidate education and determine regular or master’s cap. Evaluate timing issues – F-1 OPT cap-gap, CPT, etc. Employer FEIN registration (for first-time H-1B petitioners). File LCAs for time-sensitive cases.

March 1 – March 20: Lottery Registration Submission
Submit electronic H-1B cap registration application.

March 20 – March 31: USCIS Announces Selections; File LCAs.
USCIS conducts random lottery. USCIS sends electronic notifications of selected cases. Prepare and file LCAs for selected cases.

April 1 – May/June: File H-1B Petitions.
Prepare and file full H-1B cap petition with evidence of lottery selection and all supporting documents.

Background of the H-1B Program and Its Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2021 starting on October 1, 2020.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  20,000 H-1B visas issued to alien workers who obtained their master’s degree or higher from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree or higher holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

Major Topics and Issues for This H-1B Cap Year

As noted above, the biggest change is the way the initial H-1B cap registration and selection will be conducted. The registration will happen in the first three weeks of March and will end on March 20th which means that employers have to identify candidates and prepare/analyze H-1B cases earlier this year.

USCIS continues to exercise additional scrutiny compared to prior years and especially focusing on certain areas. The rate of requests for evidence (RFE) for H-1B cap cases have been increasing over the past years and the areas with most scrutiny are (1) entry-level positions which are consistent with payment of “Wage Level I” salaries, (2) positions where a bachelor’s degree in a specific field is not always required (the “specialty occupation” issue – see our article on this topic), (3) availability and documentation of end client work for third-party worksite locations, and (4) availability, nature and documentation of any in-house project and work.   A well-prepared and documented H-1B cap application should address these (and other) areas of possible scrutiny during this year’s H-1B cap season.

Significantly Higher H-1B Demand Expected This Year

It is impossible to predict how many registrations we will see this year but we expect demand to exceed prior years. Last year, FY2020, there were 201,000 applications. The prior year, FY 2019, there were 190,000 applications.  

There are two main reasons why we believe the demand this year will exceed prior years. One is the gradual increasing trend in H-1B cap filings over the last few years, even with the increased scrutiny by USCIS. Second, as noted above, the mechanics of this year’s H-1B cap lottery registration means that employers do not have to submit a full H-1B petition with fees in order for a case to be considered under the lottery – a fairly simple online registration plus $10 government fee (plus any attorney fees for preparing) is all it takes to submit an H-1B cap lottery entry.

USCIS has specifically indicated that they will only accept one H-1B registration per company per employee. But it is certainly possible for one employee to have good faith job offers and H-1B cap registrations from more than one employer. While one of USCIS’s main goals in changing the system was to make it easier, especially for U.S. master’s degree holders, to obtain an H-1B cap selection, if the new system effectively created a spike in registrations and, as a result, lower lottery selection chances, the outcome would be opposite to the initial intent.

We caution H-1B petitioners and candidates to keep in mind that their chance of selection this year is likely to be lower than prior years. As always, for our clients, we provide analysis of alternatives in the event an H-1B cap petition is not successful.

Over the next two months our office will monitor very carefully the H-1B application demand and we will be providing timely updates on the H-1B cap filing season, including on cap demand and expectations.   Please check back with us often or subscribe to our Weekly Newsletter to receive news and updates related to this H-1B filing season.

Attorney Assistance with H-1B Cap Preparation and Submission

Webinar Discussion

Our office is very active in monitoring news and developments relating to the new H-1B cap registration process and we are constantly engaged in improving and adjusting the best ways to prepare and file H-1B petitions in order to maximize the chances of approval. We offer a webinar session where attorneys of our firm will discuss the upcoming H-1B cap season and how to be successful in it.

Conclusion

With the H-1B cap filing process changed substantially this year, with new (and untested under volume) electronic system, and with very high demand expected, we urge H-1B employers to start the preparation process early and to conduct a thorough case analysis before submitting the H-1B cap lottery entry in early March.

If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible or submit our H-1B cap contact form.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application. Also, we invite you to subscribe to our free weekly newsletter to obtain further news and developments on this topic.