Based on past history, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting H1B quota-subject filings for federal fiscal year 2020 (FY2020) on April 1, 2019. FY covers a twelve-month period beginning October 1 and ending September 30, making October 1, 2019 the starting date of FY 2020.
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.
Our suggestion
April 2019 may seem far away, but we are advising our clients to begin preparing for the FY 2020 H1B filing season due to the following reasons:
Reason #1: Demand for H1B quota remains high
We have had a lottery since FY2014, meaning each year, the demand exceeded the quota maximum, and a computer-generated random selection process (e.g. “lottery”) had to be used for select enough petitions to meet to statutory limit.
|
H1B Fiscal Year |
Cap Reached Date |
H1B Petitions Filed |
|
2019 |
April 6, 2018 |
190,098 |
|
2018 |
April 7, 2017 |
199,000 |
|
2017 |
April 7, 2016 |
236,000 |
|
2016 |
April 7, 2015 |
233,000 |
|
2015 |
April 7, 2014 |
172,500 |
|
2014 |
April 5, 2013 |
124,000 |
Reason #2: Getting H1B approved is a lot more difficult
As the official chart published by USCIS below indicates, the percentage of H1B approvals dropped to 73% in 2017, a sharp decrease from 87% of the previous year.
|
Application & Approvals |
2018 |
2017 |
2016 |
2015 |
|
Receipts |
419,637 |
404,087 |
399,349 |
368,852 |
|
Approvals |
Not Yet Available |
298,445 |
348,162 |
307,129 |
|
Percentage of Approvals |
N/A |
73% |
87% |
83% |
While the data for 2018 is not yet made available, we expect the approval rate to be even lower. A number of factors may have contributed to the downward trend. Let’s look at some of the new challenges that relate to H1B petitions:
July 13, 2018 Memo
The July 13, 2018 Memo issued by USCIS makes it quick and easy for its officers to deny an application (including but not limited to H1B petitions) without first having to issue a request for evidence (RFE) or even a notice of intent to deny (NOID). This Memo went into effect on September 11, 2018. This memo appears to affect new H1B quota petitions as well as Change of Employer (e.g. Transfer), Extension and Amendment petitions. The fallout could mean even more denials.
The main takeaway:
Since a USCIS officer can deny a case without giving the applicant a chance to correct the flaw or provide secondary set of documents, applicants are encouraged to be diligent in collecting and submitting required evidence. In addition, H1B extension petitions should be filed well in advance of the expiration date, so that a decision is known while the applicant is still in status.
Suspension of Premium Processing
In April, USCIS announced a temporary suspension of premium processing until September 10, 2018 for all FY 2019 cap-subject petitions. That suspension was further extended through an estimated date of Feb. 19, 2019. While the initial suspension applied only to quota H1Bs, the new suspension expanded its coverage to include the change of employer petitions (H1B transfer), as well as the extension petitions with changes in job details.
The main takeaways:
- No more fast decision for new and transfer H1Bs. Without PP, the regular processing time can take up to 10 months according to the currently published chart by USCIS.
- No more fast decision for RFE. Premium processing not only guarantees an initial reply within 15 days, it also sets the same time limit for a decision after the response to a RFE has been filed. The suspension of PP can lead to a gap of several months between the end of work authorization and the H1B start date.
- In light of the above, it’s best to file at the earliest date possible, so that a decision is known while the applicant is still in status.
Increase of Broad and Burdensome RFEs
According to a report by NFAP (National Foundation for American Policy), the number of RFEs in the 4th quarter of FY 2017 almost equaled the total number of RFEs issued for the first 3 quarters of FY 2017 combined (63,184 vs. 63,599). Also, in the 4th quarter FY 2017, USCIS issued a RFE in nearly 70% of the H-1B petitions filed with the agency. While newer data is not yet available, we continue to witness increasingly heightened scrutiny, and this troublesome trend is expected to carry into 2019.
Some main common issues for RFE in 2018 include:
- Specialty occupation
- Availability of specialty occupation work
- Employer and employee relationship
- Request for a broad range of corporate documents pertaining to the petitioner’s business
- Maintenance of status while on OPT
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 may be time to make alternative plans.
- Check the prevailing wage (PW) requirement. If a deficiency is discovered early, sometimes a workaround can be found.
- 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 additional time to produce.
- Request a document checklist to determine what information is needed. Typically the checklist 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.
To learn more about what we can do for you and to receive a free evaluation, please email your inquiry to This email address is being protected from spambots. You need JavaScript enabled to view it.. Attorney Wang will personally reply, typically within 24-48 hours.