On March 19, 2019, U.S. Citizenship and Immigration Services

(USCIS) announced the start of the fiscal year (FY) 2020 H-1B cap

season, start dates for premium processing of cap-subject H-1B

petitions, and the launch of its new H-1B data hub, while reminding

petitioners of its new H-1B cap selection process. Below are

highlights of the changes.

Start of FY 2020 cap season. USCIS will begin

accepting H-1B petitions subject to the FY 2020 cap on April 1,

2019, and will reject any FY 2020 cap-subject H-1B petitions filed

before April 1. Form M-735, Optional Checklist for Form I-129 H-1B

Filings (PDF, 262 KB), provides detailed information on how to

complete and submit a FY 2020 H-1B petition.

Premium processing for FY 2020 cap-subject

petitions. Premium processing will be offered in a

two-phased approach during the FY 2020 cap season “so USCIS

can best manage premium processing requests without fully

suspending it as in previous years,” the agency said. The

first phase will include FY 2020 cap-subject H-1B petitions

requesting a change of status. The second phase will include all

other FY 2020 cap-subject petitions.

Starting April 1, FY 2020 cap-subject H-1B petitioners

requesting a change of status on their Form I-129, Petition for a

Nonimmigrant Worker, may request premium processing by concurrently

filing Form I-907, Request for Premium Processing Service. However,

to prioritize data entry for cap-subject H-1B petitions, USCIS will

not begin premium processing for these petitions immediately. USCIS

said it will begin premium processing for these petitions by May

20, 2019, and will notify the public before premium processing

begins for these petitions. If a petitioner does not file Form

I-907 concurrently with a FY 2020 H-1B cap-subject petition

requesting a change of status, the petitioner must wait until

premium processing begins 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.

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, USCIS said.

Premium processing for all other FY 2020 cap-subject H-1B

petitions will not start until at least June 2019, the agency

noted. Cap-subject petitioners not requesting a change of status

may not submit their premium processing requests concurrently with

their H-1B petitions. These petitioners will be eligible to upgrade

to premium processing by filing Form I-907 once premium processing

begins for this group. USCIS said it will notify the public with a

confirmed date for premium processing for cap-subject petitioners

not requesting a change of status.

At this time, premium processing for H-1B petitions that are

exempt from the cap, such as extension of stay requests, remains

available, USCIS said.

Note: Reaction to the guidance has been mixed.

Some say they are not filing for premium processing before lottery

selection. Given the costs of applying for premium processing

($1,410 as of this writing), their suggestion is that cases only be

premium processed once they have been selected in the lottery. By

this reasoning, even if you are filing a change of status H-1B

petition, filing for premium processing concurrently with a

petition that might not even be selected for adjudication risks

rejection not only of the premium processing request but of the

entire petition (and loss of the cap number) if there are any

problems with the premium processing check. On the other hand, some

would like to file for premium processing before lottery selection.

Their human resources representatives feel that it's easier to

try premium processing rather than go back to the hiring managers

later to seek additional funds.

New H-1B data hub. USCIS also announced a new

“H-1B Employer Data Hub” that will be available on uscis.gov on April 1, 2019. The data

hub is part of USCIS's “continued effort to increase the

transparency of the H-1B program by allowing the public to search

for H-1B petitioners by fiscal year, North American Industry

Classification System (NAICS) industry code, company name, city,

state, or zip code. This will give the public the ability to

calculate approval and denial rates and to review which employers

are using the H-1B program,” USCIS said.

New H-1B cap selection process. In January, the

Department of Homeland Security announced a final rule amending

regulations governing cap-subject H-1B petitions, including those

that may be eligible for the advanced degree exemption. The final

rule reverses the order by which USCIS selects H-1B petitions under

the H-1B regular cap and the advanced degree exemption, which will

be in effect for the FY 2020 cap season. This change

“increases the chances that more of these visas will be

granted to those with an advanced degree from a U.S. institution of

higher education,” USCIS said.

More details are available

NAICS

information and codes

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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