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.
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