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Preparing for the 2019 H-1B cap season

December 2018

On April 1, 2019, USCIS will begin accepting cap subject H-1B professional worker petitions for a start date of October 1, 2019 (FY2020).

Due to the high demand for H-1B visas and newly proposed rulemaking for cap-subject petitions, we encourage employers to take time now to identify any employees who may require first-time H-1B sponsorship, such as:

  • F-1 students currently working on OPT who require a change of status to H-1B;
  • Workers outside the U.S. seeking H-1B status for the first time;
  • Workers inside the U.S. on another work status that will max out (such as L-1A or L-1B); or
  • Workers currently in the U.S. in H-1B status working for a cap-exempt organization (non-profit or educational institution) who require a cap-subject H-1B to work for a private, for-profit organization/company.

The cap does not impact individuals currently in H-1B status seeking extensions of status, amendments of status, or changes such as a transfer to a new employer.

The annual H-1B cap is set at 65,000, with an additional 20,000 visas available for individuals who have earned advanced degree from an accredited U.S. educational institution. Once these caps have been reached, employers will be unable to file new cap-subject H-1B petitions until April of 2020.

As mentioned, the Department of Homeland Security (DHS) recently announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period.

The proposed rule includes a provision that would enable USCIS to temporarily suspend the registration process if necessary to complete all requisite user testing and vetting of the new H-1B registration system and process before this year's cap. The proposed rule would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap.

The Public comments period for the new rulemaking has begun and will be open until January 2, 2019. Comments may be submitted via the Federal Register.

Advance preparation is crucial to ensuring a complete H-1B petition is ready to file with USCIS on April 1st. Preparing the petition requires careful review of both the applicant's qualifications and the position the company is offering to the applicant.

Please contact an MVA Immigration Team Member if you have any questions or want to discuss potential H-1B applicants.