FY 2019 H-1B Cap Cases Update

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By: Lihua Tan

April, another H-1B CAP filing season, another “lottery” season.

On April 6, 2018, the U.S. Citizenship and Immigration Services (USCIS) announced that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019. It has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the master’s cap.

It is the 5th year that the H-1B Cap was reached in the first week of April. Again, all H-1B Cap cases are subjected to the “lottery”- a computer-generated random selection process. On April 11, USCIS did the “lottery” to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

Though the H-1B Cap was still reached quickly this year, USCIS received in total 190,098 H-1B Cap cases. 8902 cases less than last year’s H-1B Cap filings. On one side, this is good news for the employers and the beneficiaries, as there is a higher chance for an H-1B Cap case to be selected in the lottery process. On the other side, we believe the scrutiny being put on H-1B cases by the USCIS is one of main reasons for the reduction in case numbers. So even the case is selected in the lottery, the employer needs to prepare well for the future possible RFEs along the adjudication.

The USCIS also announced in March that, the Premium Processing (PP) for H-1B Cap petitions was temporarily suspended from April 2018. This is more reasonable than last year when USCIS announced to suspended PP service for almost all H-1B petitions from April. It immediately triggered high volume of H-1B extension, transfer case fillings which then directly led to Nebraska Service Center (NSC) experiencing serious delays in data process and issuing the receipts. Also, as NSC cannot adjudicate the case within 15 days, it returned many employers’ PP filing checks. This year, USCIS took a more practical approach and differentiated H-1B Cap cases from other type of H-1B cases, avoided the last-minute hassle to the employers, immigration practitioners and also USCIS itself.

One thing needs to point out is that on March 23, the USCIS issued a policy memorandum that designates the attached decision of the Administrative Appeals Office (AAO) in Matter of S- Inc. as an Adopted Decision in which it held that “For purposes of the regulatory bar, Matter of S- Inc. clarifies that the term “related entities” includes petitioners, whether or not related through corporate ownership and control, that file cap-subject H-1B petitions for the same beneficiary for substantially the same job. Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, USCIS will deny or revoke the approval of all H-1B cap-subject petitions filed by “related entities” for that beneficiary.” This basically prohibited substantially the same H-1B Cap filings for the same beneficiary, which was criticized in last several years.

As we estimated in last April, more “Specialty Occupation” RFEs were issued for H-1B cases in 2017. Per USCIS report on I-129, Petition for a Nonimmigrant Worker Class Preference: H-1B Receipts, Completions, and Requests for Evidence (RFE) Sent FY15 – FY18 (Through November 29, 2017, AILA Doc#17122209), there were more than 40% H-1B cases received RFEs. Among them, many are “Specialty Occupation” RFEs, requesting the employers to prove the position requiring theoretical and practical application of a body of highly specialized knowledge, which requires the attainment of bachelor’s degree or higher in a specific specialty. We anticipate that this year, “Specialty Occupation”, as well as “Level I Wage” will still be main reasons for the USCIS to issue the RFEs.

Chugh, LLP has extensive experience in responding to H-1B RFEs. Please feel free to reach us if you have any questions.

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