H-1B ​Cap ​Timing ​Issues

H-1B ​Petitions

When can petitions be filed for the next fiscal year?

In 2020, everything we know about filing procedures for cap-subject H-1B petitions is changing.  In general, all petitions for a non-immigrant worker can be filed up to six months in advance of the start date requested, so H-1B petitions for a new fiscal year, which begins on October 1, used to be filed starting the first week of the preceding April. However, DHS has now sidestepped the task of physically receipting and sorting more than 200,000 petitions filed in a single week, by publishing a Final Rule introducing a new procedure that will allow employers to pre-register electronically to sponsor named workers for the H-1B cap, without preparing and filing a complete petition. The online registration for the H1B cap lottery will use myUSCIS.gov and the e-filing period is March 1 through March 20, 2020;  lottery results will be sent out electronically at the end of March. Notifications sent to winners selected in the lottery, whose petitions will be accepted for processing under the FY2021 Cap, will designate the 90-day period in which those petitions may be filed, but filing periods will be staggered.

There are a number of unknowns about the new H-1B Cap filing process which make planning uncertain.

A) Although MyUSCIS.gov has been up and running for a few other application types, the module for H-1B pre-registration is not yet operational, so we do not know how (or if) it will work when thousands of people are trying to use it at once. It’s new, and it’s government: there is some likelihood of the platform crashing during the registration period.

B) Because the petition filing dates will be staggered, we go into H-1B Cap season  not knowing in advance when a petition can be filed for a given individual if their case is selected. This means we cannot tell any worker currently under F-1 Optional Practical Training whose Employment Authorization Document (EAD) expires in April/May/June of 2020 whether or not an H-1B petition could be filed on their behalf before that EAD  expires, which would provide them with F-1 “Cap-Gap” authorization and would allow them to keep working until October 1.

C) While the electronic pre-registration process and staggered filing dates will take some pressure off the Service Centers, USCIS has not said yet whether they will allow Premium Processing for H-1B cap petitions this year.

D) The public notice and comment period on the USCIS Proposed Filing Fee Schedule was reopened on January 27 for an additional 15 days, so we do not know when the Agency will publish a final rule with the new fees and their effective date. This raises the possibility that because of staggered filing dates, some cap-subject H-1B petitions may have a designated filing period which falls in whole or in part after new filing fees go into effect.

Do you have more questions about timing issues for cap-subject H-1B visas? Contact Karin Wolman for a consultation today!

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