USCIS TO IMPLEMENT H-1B CAP RULE CHANGING MASTER’S CAP IN APRIL 2019 AND ADDING PRE-REGISTRATION REQUIREMENT IN APRIL 2020

The USCIS posted for public inspection a final rule changing the regulations governing H-1B cap-subject petitions.  This new makes two key changes to the H-1B cap:

 

1.  Master’s Cap Allocation.  The new rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the master’s cap. USCIS will technically re-engineer the way that it conducts the H-1B lottery.  The result of the re-engineering should mean that a slightly greater number of H-1B petitions will be approved for US master’s degree H-1B beneficiaries than under the current H-1B lottery system.  We previously explained this process on an earlier blog.  This change will be implemented on April 1, 2019.

 

2.  Pre-Registration Requirement.  The rule introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions.  Under the new rule, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then submit the actual H-1B petition.  If implemented properly, this should save petitioners and the industry significant expense.

 

After considering public feedback, USCIS decided to suspend the electronic pre-registration requirement until the April 2020 cap season in order to complete user testing and ensure the system and process are fully functional.

USCIS will begin accepting H-1B cap petitions on April 1, 2019.

H-1B CAP STRATEGY TELECONFERENCE

In anticipation of the H-1B cap filing date of April 1, 2019, MU Law will be holding a free teleconference for our clients and friends on Wednesday February 6, 2018 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below. 

 

 

REGISTER HERE

 

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2019.

 

H-1B Teleconference Agenda

·      H-1B Cap Basics and Projections

·       H-1B Dependency

·       H-1B issues for Staffing Companies and Third Party Placements

·       What is Third- Party Placement v. In-House work?

·       Employer-Employee relationships

·       The New H-1B lottery

·       H-1B electronic filing

 Hot issues:  

·       Cap-gap for F-1s

·       CPT / OPT maintenance

·       NIV maintenance

·       H-4 EAD rule

·       H-1B amendments: lengthy processing times

·       Top 10 things H-1B employers can do to stay compliant

·       Legislative Update

·     What we can expect from the Trump administration and the Republican congress.

Q&A

USCIS WILL RESUME PREMIUM PROCESSING ON H-1B CAP CASES FILED IN APRIL 2018

USCIS will resume premium processing effective January 28, 2019 for all H-1B cap petitions filed in April 2018.  If a request for evidence (RFE) has been issued, the case can be upgraded to premium processing upon submission of the RFE Reply.

 

At present, H-1B extensions filed with the Nebraska Service Center are eligible for premium processing.

 

The previously announced suspension of premium processing for all other categories of H-1B petitions remains in effect. The USCIS plans to resume premium processing for the remaining categories of H‑1B petitions as agency workloads permit.

PHILIPPINES REMOVED FROM H-2 VISA LIST

The USCIS has published a notice in the Federal Register announcing changes to countries who are eligible to supply workers pursuant to the H-2 visa program.  The Philippines is no longer one of the countries that is eligible to supply workers under this program. 

This is an annual notice publication that covers the period from January 19, 2019 – January 18, 2020. 

It is important to note that this has no impact whatsoever on Registered Nurses, Physical Therapists, Medical Technologists and other allied healthcare workers.  These healthcare workers are normally filed under the H-1B visa (temporary non-seasonal workers) or Green Cards (Permanent residents).  H-2 visas are normally associated with agricultural workers, trades workers in fields like construction, and other seasonal workers such as those in resorts or the fishing industry.

The rationale for eliminating the Philippines from the H-2 program is explained in the report.  This decision will be revisited in January 2020.

The Philippines has a high H-2B overstay rate. In FY 2017, DHS estimated that nearly 40 percent of H-2B visa holders from the Philippines overstayed their period of authorized stay. Additionally, among all U.S. posts throughout the world, U.S. Embassy Manila issues the greatest number of T-derivative visas (T-2, T-3, T-4, T-5, T-6), which are reserved for certain family members of principal T-1 nonimmigrants (certain victims of a severe form of trafficking in persons). U.S. Embassy Manila issued approximately 40 percent of the total T-derivative visas issued worldwide from FY 2014-2016. A recent review of certain T-1 status recipients, whose spouses were issued T-2 visas during this same period, shows that approximately 60 percent were determined to have been trafficked to the United States on H-2B visas. DHS and DOS are concerned about the high volume of trafficking victims from the Philippines who were originally issued H-2B visas and the potential that continued H-2B visa issuance may encourage or serve as an avenue for future human trafficking from the Philippines. DHS and DOS also believe that these overstay and human trafficking concerns are severe enough to warrant removal from the H-2A visa program as well. This concern is informed by a four-fold increase in H-2A visa applications from nationals of the Philippines between FY 2015-2018. The Philippines' continued inclusion creates the potential for abuse, fraud, and other harm to the integrity of the H-2A or H-2B visa programs.

FEBRUARY 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the February 2019 Visa Bulletin. This is the fifth Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin.

February 2019 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB  Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01DEC17	08FEB17	08FEB17	01DEC17
EB-2	C	01OCT15	06APR09	C
EB-3	C	01JUL15	22APR09	01AUG17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	01NOV15	22MAY09	C
EB-3	C	01JAN16	01APR10	01OCT17

MU Law Analysis (all references are to Table A unless noted)

All Other: As we expected, the EB-1 category again moved several months.  We expect continued steady movement in this category for All Other.  We do not see any retrogression in the future for EB2 or EB3, other than the usual retrogression at the end of the Fiscal Year.

China: Likewise, the China EB-1 category progressed several months. This category may not move as fast as All Other in the next few Visa Bulletins.  China EB-2 moved two months.  EB-3 only moved a few weeks, reflecting continued high demand.  Still, we expect EB-3 to slightly outpace EB-2 in the next few Visa Bulletins.

India: India EB-2 moved by just one week. EB-3 progressed by six weeks.  We expect the slow/no progress to be standard for EB-2 in the first part of FY 2019.  We are slightly more optimistic about India EB-3, which could continue to progress faster than EB-2.

Philippines: The EB-3 date showed steady progress, improving by six weeks. Over the course of FY2019, we should eventually see the EB-3 priority date extend into FY2018.

H-1B COMMENT PERIOD CLOSED

Last month USCIS published two proposed rules to the H-1B cap process.  As we noted on December 5, 2018:

 The two rules are:

1.    Electronic pre-registration for the H-1B cap.  This is a proposed rule that has been considered by USCIS since 2011.  Under the proposal, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then have 60 days to submit the actual H-1B petition.  If implemented properly, this should save petitioners and the industry significant expense.

2.    H-1B Masters Cap Allocation Preference.  USCIS will technically re-engineer the way that it conducts the H-1B lottery.  The result of the re-engineering should mean that a slightly greater number of H-1B petitions will be approved for US Masters Degree H-1B Beneficiaries than under the current H-1B lottery.  We previously explained this process on an earlier blog.

Now that the comment period has ended the USCIS must read and consider all of the comments, which were plentiful.  Many of the comments focused on the fact that rushing this proposal forward for the April 1, 2019 H-1B cap is a bad idea.  MU Law agrees that the USCIS is moving too fast with these recommendations.

The USCIS has not announced a timetable for a decision as to whether the proposed changes will be adopted and, if so, whether they will go into effect for April 2019.  It is however expected that they will make a decision by February.