U.S. Citizenship and Immigration Services (USCIS) has announced they have received 201,011 filings against this year’s H-1B quotas this month – 10,913 more filings than last year, showing that U.S. employers need skilled foreign workers more than ever. USCIS has completed the lotteries for the FY 2020 H-1B cap selection and is beginning to send receipt notices to employers whose H-1B petitions have been selected. There are two H-1B lotteries, one for employees that have a bachelor's degree, for whom there is an allotment of 65,000 H-1B visas each year, and another for employees with U.S. advanced degrees, who are eligible to receive another 20,000 H-1B visas.
Employers are receiving Notifications of Selected Petitions
This week USCIS has begun sending email notifications to employers whose H-1B petitions have been selected. Receipt notices will be received in the coming weeks for those selected petitions. However, it may be another month or more before all notifications are received. Those who have not been selected will not know for sure until their rejected petitions are returned in the mail. It may take many months for all rejected petitions to be returned. Changes in the way the lotteries are conducted has increased the percentage of H-1B allotted to holders of U.S. advanced degrees to 63%. Last year 56% of H-1B visas were allotted to advanced degree holders.
Unlike last year, this year petitions that requested a change of status to H-1B could be filed with premium processing. Last year premium processing was completely unavailable for cap H-1B filings, and many applications took 6 months or more to be adjudicated. Premium processing means that USCIS will respond within 15 calendar days, and this year USCIS has stated that for petitions selected in the lottery the 15-day processing period will begin on May 20th. Within that 15-day period USCIS may issue an approval, a denial, or a request for additional evidence (RFE). Applications that do not request a change of status, but instead require that the employee go abroad to obtain an H-1B visa stamp at a consulate before returning to the U.S. in H-1B status, could not be filed with premium processing. Premium processing may be made available for these petitions later. If a petition was not filed with premium processing and it is available, the petition may be upgraded to premium processing at any time.
Change-of-Status Petitions and “Cap Gap” Work Authorization
For students on OPT work permits whose H-1B change-of-status petitions are selected, if their work permits expire after the filing of the H-1B, their work authorization will be automatically extended until October 1st, 2019, if their petition is still pending or eventually approved. This is called “cap gap” work authorization. When these change-of-status petitions are approved the employee will automatically be changed to H-1B status starting October 1st. Note that petitions that do not request a change of status will not grant “cap gap” work authorization and will not change the employee’s status to H-1B automatically. As stated above, employees with approved H-1B petitions that were filed without requesting change of status, an option called “consular notification”, will need to obtain H-1B visa stamps at a U.S. consulate abroad before returning to the U.S. in H-1B status. This option may be preferable for employees who have a lot of time left in OPT status and don’t want to begin their 6 years of H-1B status until their OPT expires.
Travel and Change-of-Status Petitions
Note that employees who have a pending H-1B petition requesting a change of status should not travel internationally while the change-of-status petition is pending. Generally speaking, if the beneficiary of an application requesting change of status leaves the U.S. while the application is pending USCIS may consider the change of status abandoned. This may result in the denial of the change of status. An employee with a valid student visa or valid OPT work permit who has a pending petition requesting consular notification may travel internationally with the valid student visa and OPT work permit.
Increase in Requests for Evidence and Denials
For those who are lucky enough to have their H-1B petitions selected, note that requests for evidence and denials have become more frequent. H-1B denials have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019 for new H-1B petitions requesting initial H-1B employment. The Trump administration is holding H-1B applications to much higher standards, and is scrutinizing petitions filed by smaller companies, petitions using lower wages, and petitions that don’t establish a close relationship between the employee’s job and their education, among many other issues. See our previous blog about the new challenges for H-1B petitions here. Immigration law is currently changing constantly, and we are continuously updating our strategies to meet these new challenges. For any questions about the H-1B application process and latest updates subscribe to our blogs and newsletters or contact us for a consultation.
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