FY2020 H-1B CAP Cases Update and Projection

Practice Areas
By: Lihua Tan April 2019 begins with the H-1B Cap cases “lottery” once again. On April 10, 2019, USCIS completed the H-1B Cap cases random selection process for Fiscal Year (FY) 2020. The limits for the advanced degree exemption cap (20,000) and regular cap (65,000) were both reached. Despite the increasing rates of Request for Evidence (RFEs) and even denials, USCIS received 201,011 H-1B Cap petitions, which is 10,913 more than last year’s H-1B Cap filing. It is also the 7th year that the H-1B Cap was reached in the first week of April. This year, the USCIS started to use the new “lottery” procedure. It first conducted the selection process for all H-1B Cap-subject petitions. Then it selected a number projected to reach the advanced degree exemption from the remaining eligible petitions.1 The USCIS estimated an increase of up to 16% (or 5,340 workers) of selected petitions for H-1B beneficiaries with an advanced degree (master’s degree or higher) from a U.S. institution of higher education.2 In practice, from April 11, our office started to receive e-receipts from the USCIS premium processing unit. Per the USCIS, it will begin the premium processing for FY 2020 cap-subject H-1B petitioners requesting a change of status on May 20. In practice , from Aril 11, our office started to  receive e-receipts from the USCIS Premium Processing Unit for advance degree exempt Cap cases, though per the USCIS, it will only begin the premium processing on May 20 for FY 2020 H-1B cap cases  with a change of status request.. On the contrary, beneficiaries of regular H-1B Cap cases will have a lower chance of being selected compared with previous years considering the quantity of overall H-1B Cap cases filed and new selection process this year. We anticipate that the USCIS will keep issuing RFEs and even denials when it starts the adjudication process. In fact, the H-1B denial rate has skyrocketed since FY2016 according to a research conducted by the National Foundation for American Policy (NFAP). The denial rate chart for initial (new) employment is listed below3:
FISCAL YEAR DENIAL RATE
FY 2019* 32%
FY 2018 24%
FY 2017 13%
FY 2016 10%
FY 2015 6%
FY 2014 8%
FY 2013 7%
FY 2012 5%
FY 2011 7%
FY 2010 8%
FY 2009 15%
The NFAP research was based on the data published in H-1B employer Data Hub which was just released on April 1 by the USCIS. 4 It already created serious concerns to general public on USCIS’ new adjudication standard.  Petitioners should prepare in advance. In the past year, the H-1B RFEs centered mainly in two areas: “Specialty Occupation” and the “Employer-Employee relationship”. Other common RFE topics include  incorrect wage level, SOW (Statement of Work) validity date, and maintaining  status by the beneficiary.  Employers will need to sufficiently document in response to a RFE or denial with the help of an experienced immigration attorney.   Chugh, LLP has extensive experience in responding to H-1B RFEs, and file motions/appeals. Please contact our team for assistance. 1 https://www.uscis.gov/news/news-releases/dhs-announces-final-rule-a-more-effective-and-efficient-h-1b-visa-program    published on January 30, 2019. 2 https://www.uscis.gov/news/news-releases/dhs-announces-final-rule-a-more-effective-and-efficient-h-1b-visa-program    published on January 30, 2019. 3 “H-1B Denial Rates: Past and Present”, National Foundation for American Policy Brief, April 2019, Table 1. Please notice that the H-1B petitions for “initial Employment” include H-1B Cap and other new employment cases. 4 https://www.uscis.gov/h-1b-data-hub, published on April 1, 2019