April 1st marks the beginning of the 2019-2020 H-1B lottery window. There are some changes that you can expect and should be aware of before filing.
1. The Department of Homeland Security (DHS) has posted a final rule (on 01/30/2019) amending regulations governing H-1B cap-subject petitions, including those eligible for the Masters degree exemption. It reverses the order by which the USCIS selects H-1B petitions under the H-1B regular cap and the masters cap (advanced degree exemption).
2. The premium processing suspension ended on January 28, 2019. Unless the USCIS enacts a new suspension, petitioners will be able to file H-1B petitions with premium processing during the lottery window in April for the H-1B 2020 season.
The H-1B requirements are as follows. You must:
Possess at least the required bachelor’s degree
Not be the sole proprietor of the sponsoring company
Your employer must also be able to pay you the prevailing wage and show that hiring you is a business necessity. Additionally, even though the rules have been relaxed a bit surrounding self-employment, you still cannot self-petition. To be able to use your own business as your H-1B employer in 2020, you will need to set up a CEO or board of directors with the power to control your salary, duties, and employment status.
Have a job offer from a U.S. employer for a specialty position requiring a bachelor’s degree, or higher.
Your employer will also need to obtain a Labor Certification Application for you before filing the H-1B petition. This is done through the U.S. Dept. of Labor.
USCIS will officially begin accepting petitions for the H-1B Visa 2020 today, April 1st, 2019 for the next fiscal year (which begins on October 1, 2019). The H-1B Visa cap, enforced by USCIS, has a congressionally mandated limit of 65,000 for the regular pool and an additional 20,000 for the advanced degree. Be aware that not all H-1B non-immigrant visas are subject to the annual cap.
In order to be considered a cap-exempt petition which can be filed at anytime, you must have either been previously counted against the cap or have a position with a cap-exempt employer. Note that certain positions with qualified employers are not subject to the H-1B annual quota even if the candidate has not been counted against the cap previously. Examples include an Institution of Higher Education or an Affiliated Entity, as well as a Non-Profit or Governmental Research Organization.
The premium processing suspension that was enacted for the 2018 and 2019 fiscal years has ended, meaning that H-1B petitions can now be filed with Form I-907 to be expedited in 15 calendar days. In addition, the premium processing fee has increased from years past. As of October, 2018, instead of the previous $1,225, the fee has increased to $1,410. It is important to be aware of this change, as filing the wrong fee will result in a rejection of your I-907 request for premium processing.
New H-1B 2020 Rules
Because of the Buy American Hire American executive order signed by President Trump in April of 2017, the USCIS has put new rules into effect that may start this 2020 filing season. One such rule makes two big changes for the H-1B visa. It is important to note that these are not simply proposed changes, they are in the process of being implemented. So the question is not if these changes will be enacted, but when.
H-1B Rule Changes
H-1B petitioners will no longer file petitions into the lottery for the 2021 filing season. (Remember, this change begins in the following lottery season.) Instead, they will register before the lottery window even begins. The USCIS will deal directly with these online registrations rather than sifting through hundreds of thousands of petitions and having to deal with sending all unselected petitions back to the petitioners. Therefore, the process will go as such:
Employers will register their alien beneficiaries with the USCIS several weeks before the start of the lottery window on April 1st, 2020.
The USCIS will randomly choose beneficiaries through this registration system. If a beneficiary is selected, only then will the employer file the petition packet with filing fees and supporting evidence.
Remember, this means that you do not file a petition in order to be entered into the lottery. Registrations will have replaced petitions to save the USCIS time and to save employers money.
Keep in mind that the USCIS is still in the process of testing and refining this online system. Because of this, pre-registrations will be suspended for the 2020 filing season and they will be implemented the following year.
After the Final Rule instituted in January of 2017, H-1B holders have also been given a grace period that extends 60 days after the termination of your employment, provided that it does not exceed your I-94 arrival/departure card. This will give you time to either find new employment, change your status to a different visa, or prepare to leave the country. If you are still in the U.S. after the end of this grace period, you may be considered “out of status”, which could have serious consequences including a bar from future visits to the country. We predict that this grace period will still be extended to H-1B holders in 2020.