Changes Help Foreign Workers with Advanced U.S. Degrees
By Grant Godfrey, Immigration Attorney
U.S. Employers continue to struggle to fill highly-skilled positions, particularly in the Science, Technology, Engineering, and Math (STEM) fields where well-educated U.S. workers with the required experience and/ expertise remain in short supply. H-1B “specialty occupation” workers have played an important role in filling these needed jobs and the temporary work visa classification remains the visa of choice that U.S. employers utilize to employ foreign nationals in these positions. This visa classification is available where: (1) the job is complex enough to require at a minimum a Bachelor’s degree in a specific field of study, and (2) the foreign national has the required Bachelor’s degree, or its equivalent, in that field. By filing an H-1B petition, the employer agrees to meet other important requirements, like paying at least a market wage for the position in the area of employment and providing notice of the proposed employment to other workers. Although much maligned by President Trump, the H-1B program will open as usual for the first five (5) business days in April, with some changes that increase the number of H-1B visas available to foreign nationals holding advanced degrees from U.S. colleges and universities.
The H-1B Cap
The H-1B program was established by the Immigration Act of 1990, a law signed by then President George H.W. Bush, and currently caps the total number of new H-1B visas issued during any government fiscal year at 85,000 (H-1B Cap). Note that certain employers, most notably universities and non-profit entities affiliated with universities, are exempt from the H-1B Cap and can hire foreign nationals into H-1B positions without any consideration of the H-1B Cap. Most employers, however, are not exempt from the cap, and if they want to employ a foreign national pursuant to H-1B classification who has not held that classification previously, then they must consider whether or not the worker qualifies for an H-1B Cap-subject petition.
Cap-subject H-1B visas are given out each year in two primary tranches – there are 20,000 visas reserved for foreign nationals with a U.S.-earned Master’s (or higher) degree – i.e. the “U.S. Master’s Degree Tranche” – and an additional 58,200 visas under the “Regular Tranche” for all foreign nationals who qualify for H-1B classification, including those with U.S.-earned advanced degrees. Finally, the USCIS reserves 6,800 visas for citizens of Singapore (5,400) and Chile (1,400) for H-1B1 visas. H-1B1 visas have historically been under-utilized and remain available throughout the fiscal year. Unused numbers reserved for H-1B1s are added back to the next year’s quota.
H-1B petitions can be filed up to six-months in advance of the anticipated start-date. New H-1B Cap numbers become available on October 1st, the start of the government fiscal year. As a result, cap-subject employers can file H-1B Cap petitions as early as April 1st for a start date of October 1st. We are therefore advising all employers who expect to sponsor an employee for a new H-1B visa to file within the first five (5) days of April (i.e. so that the petition is received no earlier than April 1, 2019 and no later than April 5, 2019).
The H-1B Cap Lotteries
Because demand for new H-1B visas has far exceeded the yearly supply allowed by Congress, the U.S. Citizenship and Immigration Services (USCIS) has implemented a filing window during which it must accept all H-1B Cap petitions before conducting the lotteries. Currently that filing window is a minimum the first five (5) business days of April. Once the filing window closes USCIS tallies up the total number of cap-subject H-1B petitions received during that period, and if the number exceeds the quota then it runs random lotteries to determine which petitions will be selected for processing. Last April USCIS received approximately 190,000 cap subject H-1B petitions in the first week of April. We are projecting that this year the cap will again be reached within the first week of April and that USCIS will once again hold its lotteries.
On January 31, 2019, the Department of Homeland Security (DHS) published a final rule that will become effective on April 1, 2019 and will change the way in which the H-1B Cap Lotteries are administered:
- Effective this year USCIS will be administering the random lottery for the Regular Tranche first for all petitions filed (including those who have U.S. Master’s degrees) and then the U.S. Master’s Degree Tranche. This is an inversion of the traditional process where the U.S. Master’s Degree Tranche was run first and then anyone not selected in it was rolled into the Regular Tranche. This change will increase the number of foreign nationals with at least a U.S. Master’s degree who are selected in the lotteries.
- Effective next year (at the earliest) USCIS will build and implement an electronic registration system where employers provide basic information about themselves and the worker that they are seeking to sponsor instead of filing a full H-1B petition. The lotteries will then be run based on the electronic registrations and those selected will be notified and will have 90 days to prepare and file the cap-subject H-1B petition. USCIS has wisely delayed implementing this rule until at least next year. It plans on opening the electronic registration window and running the lotteries before April 1st so that cap-subject H-1B petitions can begin to be filed on the first day. USCIS will provide at least 30 days’ notice before opening the registration window, and once the registration window opens companies will have at least 14 days to electronically register all proposed cap-subject H-1B employment. Until this system is implemented and announced, the current system of filing cap-subject H-1B filings for the first five business days of April and then running the lotteries as described above will remain in place.
Situations in which Employers Should Consider Filing an H-1B Cap-Subject Petition
- Employees who are subject to the H-1B Cap are those who have not previously held H-1B status and who have not been counted against the H-1B Cap within the past six years. Within this group typically are:
- Individuals who hold F-1 student status and are either graduating this spring or summer, or who are in their period of employment authorized Optional Practical Training (OPT) granted as part of their F-1 student status;
Individuals in J-1 scholar or researcher status who are completing their programs this spring or summer;
- Individuals who are currently outside of the U.S.; and
- Individuals who have been employed in H-1B status but only with “exempt” institutions or organizations, such as universities, related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations.
Note that the H-1B cap does not apply to a foreign national who is currently in the U.S. in H-1B status and has already been counted against the H-1B Cap.
A few important points to note:
- USCIS takes the position that the foreign national’s eligibility for H-1B status must be established at the time of filing. Thus, if the foreign national is hoping to apply in the U.S. Master’s Degree Tranche but has not completed all program requirements for the U.S. Master’s degree on or before April 1st, the foreign national is not qualified for consideration under the U.S. Master’s Degree Tranche. This person would have to file for an H-1B in the Regular Tranche based on possession of a foreign or U.S. Bachelor’s degree or its equivalent.
- Most commonly, F-1 students have a period of one year of employment authorized OPT. F-1 student employees who graduate in the Spring will commonly have OPT that expires between May and August of the following year. Employees in F-1 status whose OPT will expire before October 1 are automatically granted a “Cap Gap” extension of their OPT if the H-1B visa petition filed on their behalf is selected for processing. To be eligible for a Cap Gap extension, their OPT must also have been valid on the date the H-1B petition was filed. An F-1 student employee whose OPT employment authorization will expire before October 1 must inform their school of their H-1B selection and obtain an endorsement for Cap Gap extension. Only H-1B petitions that are filed with a request for change of status from F-1 to H-1B are eligible under this rule.
- F-1 students who have graduated in a STEM designated program field and who will be working with a U.S. employer that is registered with the e-Verify system are eligible for a 24-month extension of their OPT after the initial 12-month period has run. Thus, F-1 students in certain STEM designated degree programs may be able to take advantage of up to 36 months of employment authorization after graduation pursuant to F-1 OPT and will have several opportunities to apply for and secure an H-1B visa.
- USCIS routinely suspends premium processing for cap-subject H-1B petitions for several months after the lotteries are run in April. Premium processing is a service offered by USCIS whereby employers can pay an extra $1,410 filing fee for guaranteed review of their petition within 15 calendar days of its receipt. This past year USCIS initially anticipated suspending premium processing for cap-subject H-1B petitions for five months but then in August USCIS extended its suspension of premium processing before reopening premium processing for cap-subject H-1B petitions as of January 28, 2019 (i.e. almost 10 months after the petitions were initially filed). We expect that USCIS will at least suspend premium processing for all H-1B Cap cases this year and that could negatively affect F-1 students who rely on the Cap-Gap extension described above.
The H-1B filing window is just a little over two months away and that filing window is fleeting — this year just for five days. It is vital that employers determine which of their foreign employees or prospective employees to whom they have made offers will require an H-1B this year. The rules (as outlined briefly above) are complex and every case requires its own analysis. It is thus important that you collect the necessary data about possible H-1B candidates and begin a discussion with your immigration legal counsel as early as possible so that appropriate plans can be made to increase the chances of your foreign national employees being able to secure and/ maintain legal status and work authorization.