On April 2, 2018, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting H1B quota-subject filings for federal fiscal year 2019 (FY19). FY covers a twelve-month period beginning October 1 and ending September 30, making October 1, 2018 the starting date of FY 2019.
There are 65,000 regular H1B quota numbers plus 20,000 advanced-degree quota exemptions (U.S. master's quota) available per FY.
Each year, H1B quota-subject cases can be filed beginning on the first business day in April. Under USCIS regulations, the minimum filing period for H1B quota cases is five business days. If there are still quota numbers available at the end of the first five days, the quota remains open until filled. If there are enough cases to meet or exceed the quota in the first five days, the quota closes. In that event, USCIS stops accepting new H1B quota filings, and a lottery is conducted from the cases filed during the first five business days to randomly select the cases that the USCIS will adjudicate. The remaining cases are then returned as rejected.
April of 2018 may seem far away, but we are advising our clients to begin preparing for the FY 2019 H1B filing season due to two reasons:
- The demand for H1B quota numbers is expected to remain high for 2018;
- USCIS came up with two policy memorandums in 2017, making H1Bs more difficult to obtain.
Reason #1: Demand for H1B quota remains high
According to a chart published by USCIS, demand exceeded the quota maximum for each of the most recent years, and a computer-generated random selection process (e.g. “lottery”) had to be used for select enough petitions to meet to statutory limit.
|Application & Approvals||2017||2016||2015|
|Percentage of Approvals||58%||87%||83%|
Reason #2: Getting H1B approved is a lot more difficult
As the chart above indicates, the percentage of H1B approvals dropped to a historical low of 58% in 2017. Without going into the politics beyond this sudden change, let’s look at two new H1B related policy memorandums put out by USCIS.
April 3, 2017 Memo
On April 3, 2017, USCIS made available a Policy Memorandum, which rescinds the December 22, 2000 memorandum titled “Guidance memo on H1B computer related positions.” The new Policy Memo implements a significant change to the adjudication of H1B petitions for computer programming positions. Written in an ambiguous manner, the Policy Memo does not establish a standard for adjudication. Rather, it instructs USCIS officers not to follow the existing policy standard dated December 22, 2000.
This memo appears to affect all new H1B petitions as well as Change of Employer (e.g. Transfer)
Three main takeaways:
- The Occupational Outlook Handbook (OOH) is no longer sufficient evidence to prove a particular position in computer programming as a specialty occupation.
- A designation that a position is Level 1, entry level position would likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation. This provides a basis to deny many pending cases.
- Even though the Policy Memo only discussed computer programming jobs, its impact extended to a wide range of occupations such as entry level business related positions, as well as some traditionally “slam dunk” positions in engineering.
October 23, 2017 Memo
In its October 23, 2017 Memorandum, USCIS eliminated the current practice of giving deference to prior approvals when adjudicating Form I-129 petition renewals where the facts of the petition remain unchanged.
This memo appears to affect all H1B renewal petitions.
The main takeaways:
- Renewal filings face increased scrutiny by getting “re-adjudicated”
- Petitioner should be prepared to demonstrate and document all eligibility factors, as if this is a first-time filing. The renewal petition should also comply with the newly established requirements in USCIS April 3, 2017 memo.
Practical tips and pointers – things you can look into now
- Initiate the dialog at the company you work for. The H1B process is driven by the employer. If you realize that the current company does not offer H1B sponsorship, it’s time to make alternative plans.
- Check the prevailing wage (PW) requirement. If a deficiency is discovered early, sometimes a workaround can be found. At other times, perhaps there is still time to make alternative plans.
- If the salary is designated as PW Level 1 (e.g. entry level), allocate additional time for case preparation. An Expert Opinion Letter may be necessary, which takes an additional week or two to produce.
- Request a document checklist to determine what information is needed. Typically this would include things like degree certificates, transcripts, job description, corporate documents, etc.
- If the company is filing its first H1B, get its FEIN (tax ID number) verified as soon as possible, as the verification takes additional time to get processed.
- Update the company’s VIBE listing, which is used by USCIS to verify business and financial information submitted by petitioning employers.
Advantage of early planning and preparation
Starting early in the season allows the attorneys to identify potential issues that would take time to resolve. For example, the applicant’s foreign credentials may need to be assessed by a degree evaluation company. If the applicant held J-1 visa in the past, a waiver may need to be applied for as soon as possible. There may a gap in the approved dates for employment, and the company can plan for a workaround in advance. In some cases, early planning sometimes yields an alternative route that’s more efficient. For example, the applicant may qualify for O-1 visa, or L1-A/B, or investment based applications.