Can you believe that H-1B Season is upon us! Each year, I say it seems like yesterday we filed last year’s H-1B Cap Cases. This year is particularly true as we are still responding to Requests for Evidence and waiting for decisions on April 2018 H-1B Cap Cases. USCIS issued the most requests for evidence and denials it has ever issued on H-1B Cap cases. In fact, USCIS has stated that it issued requests for evidence in 70 percent of the H-1B Cap cases filed. So, what have we learned?
- Assess your H-1B needs as soon as possible—at least from now until at least October 1, 2020. Do you have new contracts or projects? Do you employ F-1 students who are working on OPT or STEM OPT Employment Authorization cards? Do you employ H-4 visa holders who are working on Employment Authorization Card that may be eliminated by the Trump administration soon? Do you employ TN or E-3 work visa holders who you are planning to sponsor for permanent residence? Do you want to employ Candidates who were not selected last year who are now in some other status or who have left the country? These are all good candidates for this year’s H1-B Lottery.
- Provide us with your information as soon as possible to determine if there are any issues. Do we need an Expert Opinion that the position is a professional occupation? This is particularly true for Level I salaries where the Government says that most of these positions usually require a degree, but some do not.” Reputable evaluation services also get backlogged in H-1B Season and may decline cases if received too late. It also may take time to get educational evaluations or copies of documents such as degrees and foreign transcripts.
- If you have not filed an H-1B Petition before, the Department of Labor may need to verify your Federal Tax Identification Number which can add some time on to the typical 7-day wait to get an approval on the Labor Condition Application.
- In all level 1 and level 2 salary situations, we want a detailed organizational chart showing who the beneficiary reports to and others in the same position and their academic qualifications. We also want copies of the degrees and resumes of supervisors and degrees and pay roll records of others in the same position.
Well I am not going to be all doom and gloom. On a positive note, USCIS has changed the way it will select Beneficiary’s for the lottery and those for the advanced degree exemption. If the Beneficiary has a master’s degree or higher from a U.S. University, they have a higher chance of being selected this year. USCIS announced that effective this Cap season, it will reverse the order by which it selects petitions under the H-1B cap and the advanced degree exemption. Under the final rule, USCIS will count all applicants towards the 65,000 regular Cap first, then select applicants towards the 20,000 advanced degree exemption second. USCIS anticipates that this change will result in an increase of up to 16 percent—or 5,340 workers—in the number of selected petitions for H-1 beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
Remember, we must file H-1B Applications in the first week of April 2019. Ideally, we like USCIS to receive these filings on April 1, 2019—the first eligible day for filing. That means we should send cases out on Friday March 29, 2019.
Cheers to H-1B Season. We look forward to working with you again this year.
Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration