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H-1B Program Changes for Upcoming Lottery Season

01.17.2020

There are significant changes in store for the H-1B nonimmigrant visa process for this year’s cap-subject petitions that are to be filed in the coming months.  On January 9, 2020, the U.S. Citizenship and Immigration Services (“USCIS”) issued its long-awaited final guidance on the H-1B nonimmigrant visa registration process for cap-subject petitions.

As many employers know, the H-1B nonimmigrant visa program (the “H-1B Program”) is a nonimmigrant visa program via which U.S. employers seek to sponsor the employment of foreign national workers in “specialty occupations.”  With some notable exceptions, most private-sector employers who desire to obtain an initial H-1B visa for a particular worker file a petition with hopes of securing one of the 85,000 annual visas allocated to the H-1B Program (this total is comprised of 65,000 “regular” H-1B cap visas and 20,000 “advanced degree” H-1B cap visas). Historically, employers have been required to submit complete petitions by April 1 of each year (for visas to start at the beginning of the government’s fiscal year on the following October 1), with the hope of having a petition selected and all of the hard work in preparing the petition pay off.

For the coming year, USCIS is changing this process. Starting this year, USCIS will require employers to pre-register for each prospective H-1B worker through an online electronic registration system during a designated registration period. Once the registration period closes, USCIS will conduct the “lottery” process (if needed based on the number of registrations received). Only if a registration is selected in this process will the employer then be able to complete and file a cap-subject H-1B petition for that fiscal year. A selected employer’s complete H-1B petition will be due within 90 days of notification of selection.

USCIS has been publically foreshadowing this process for well over one year now and the recent guidance confirms that USCIS will accept pre-registration applications beginning on March 1, 2020. Further, this registration period is anticipated to close on March 20, 2020. This change effectively moves the H-1B filing “deadline” back from April 1 to March 1 for this year’s filings. As such, employers interested in sponsoring workers for cap-subject H-1B petitions should prepare accordingly in order to meet this new deadline.

Based on the foregoing, time is of the essence for employers to start considering workers for H-1B sponsorship. Potentially eligible candidates may include, for example, individuals in F-1 student status who are working pursuant to post-degree completion Optional Practical Training (“OPT”) programs; workers already sponsored by an employer in L-1 status for whom the employer anticipates sponsoring for permanent residence (a/k/a “green card”) but for whom it is unlikely that a “green card” will be timely available; and prospective employees an employer may want to consider sponsoring.

The changes to USCIS’ process could present an opportunity for employers that have historically elected not to pursue sponsorship of workers in H-1B nonimmigrant status due to the costs of the process – all of which historically had to be incurred just to get a chance at the lottery. Under the new procedures, employers may have the ability to explore sponsorship options while deferring certain costs incident to the process unless and until selection in the lottery is confirmed.

This new deadline reflected above is critical. New H-1B visas are typically only available once per year under the H-1B Program, so if employers do not sponsor workers at this juncture, the next opportunity will not be until 2021.  If you are interested in employing a foreign national in a “specialty occupation” in the U.S., please contact one of the immigration specialists on the Koley Jessen team to discuss the H-1B Program and other nonimmigrant or immigrant visa options.

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