March 19, 2019

Immigration Insider – USCIS Processing and Cap Filings of H-1B Petitions

We are waiting for USCIS to confirm whether Premium Processing will be available for upcoming H-1B cap filings. In prior years, Premium Processing has been suspended for these petitions. Given the quickly approaching lottery filing window, we expect to hear from USCIS soon.

Update on Changes in H-1B Cap Filings

As explained in the Winter 2018 Immigration Insider, in November 2018, USCIS issued a proposed rule to change the manner in which H-1B cap filings are accepted and how the lottery is conducted. On January 31, 2019, the rule was finalized after public comment.

The new rule requires pre-registration for employers wishing to sponsor individuals for H-1B status. Beginning with Fiscal Year 2021 H-1B filings (April 2020), employers will be required to submit an electronic pre-registration in order to sponsor an employee for H-1B status. If USCIS receives more electronic pre-registrations than there are H-1Bs available, a lottery will be conducted based on the submissions. If selected in the lottery, the employer will have a period of at least 60 days to file a complete H-1B petition for the beneficiary. To prevent a surge in applications, USCIS will provide several staggered filing periods.

The second part of the new regulation takes effect for this year’s H1B cap filings (Fiscal Year 2020) and changes how the lottery is conducted. Previously, the lottery was conducted first for petitions in which the beneficiary holds at least a U.S. master’s degree, then the regular-cap lottery followed. With the new rule, the regular-cap count/lottery will take place first, and include all petitions received, including those for individuals with a U.S. master’s degree. Once complete, the advanced degree lottery will be conducted for the additional 20,000 H-1Bs available. The aim is to provide more opportunities for selection for those holding a U.S. master’s degree.

Immigration Forecast for 2019

Perhaps no area of law has garnered more recent attention than immigration. Despite its dominance in the headlines, very little has changed with regard to employment-based immigration law in the last 20 years. Forecasting what could change is difficult, however, there are some recent trends that we expect will continue for the foreseeable future.

  • Increased scrutiny of applications. We have seen heightened scrutiny for all types of immigration filings. Applications that, in the past, would not have had cause for concern, are now resulting in requests for substantial additional information. Denial rates are also on the rise.
  • Increased processing times. Processing times for all types of immigration filings have increased significantly in the last 12+ months. This is likely due to shifts in resources by the agencies to vetting and fraud detection initiatives. We do not have any indication that the problem of lagging processing times is being addressed, and therefore, expect this to continue.
  • Increased site visits/audits. We have seen an increase in site visits and audits conducted by USCIS, Department of Labor (DOL) and Immigration and Customs Enforcement (ICE) on a wide variety of employers, with particular emphasis on the agriculture and aerospace industries, and business entities with government contracts.

In these uncertain times, and given the above, there are two guiding principles for foreign nationals, employers and attorneys: prepare and manage expectations. Prepare for I-9 audits and site visits. Prepare an alternative plan in the event an application is denied. Manage expectations with regard to processing times and the more arduous path to approval of applications. The Immigration Department at Kerr Russell will continue to keep you updated on any new developments.


Practice Areas

Immigration Law