Alliance of Business Immigration Lawyers (ABIL) attorneys

recommend that employers assess their need for H-1B employees and

begin working on their H-1B petitions now. Filing season is

expected to open April 1, 2019, for fiscal year (FY) 2020

cap-subject H-1B visas. Annual demand typically far outstrips

availability, so the visas are snapped up immediately.

ABIL recommends the following ways for employers to maximize

their H-1B chances:

  • Apply based on a master's degree

    from a U.S. nonprofit university as long as all degree requirements

    were completed before April 1

  • Ensure a close match between the

    course of study and job duties

  • Apply concurrently for optional

    practical training (OPT) or STEM OPT and H-1B

  • Apply for “consular

    notification,” not change of status, to preserve OPT if OPT

    lasts beyond October 1

  • Apply for “change of

    status” if OPT expires before October 1 to preserve work

    eligibility under “cap gap” policy, but avoid travel

  • Choose O*NET code and wage level

    carefully

  • If more than one field of study could

    qualify a person for the position, explain task by task how the

    position requires the education

  • Be careful of Level 1 wages. Instead,

    obtain an acceptable prevailing wage from a legitimate source other

    than the Department of Labor, offer to pay a higher wage from the

    outset, or explain why this particular job is both entry level and

    qualifies as a “specialty occupation”

  • Consider other visa options if your

    employee is not selected in the H-1B lottery

  • Check the USCIS website for changes

    to form, fee, and filing location

The Department of Homeland Security (DHS) published a notice of

proposed rulemaking on December 3, 2018, that would require

petitioners seeking to file H-1B cap-subject petitions to first

electronically register with USCIS during a designated registration

period. USCIS said the proposed rule would also reverse the order

by which the agency selects H-1B petitions under the H-1B cap and

the advanced degree exemption, with the goal of increasing the

number of beneficiaries with master's or higher degrees from

U.S. institutions of higher education to be selected for H-1B cap

numbers and introducing “a more meritorious selection of

beneficiaries.” It is unclear, however, if the rule will be

finalized and implemented in time for the start of the H-1B filing

season on April 1.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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