The Fiscal Year (FY) 2019 new H-1B Cap Season has officially begun. To help guide prospective H-1B employers and employees that are planning on filing new H-1Bs this year, the following is a list of frequently asked questions that arise. This information seeks to accomplish two goals: to provide a basic background of the cap season (what cap season is and how it works) and to provide more detailed information that guides the more detailed inquirer. The below FAQ guide strives to answer the most common questions. However, readers are encouraged to contact KNG Law for any further individual questions and guidance.
What is the H-1B visa?
The H-1B nonimmigrant visa program allows employers to temporarily sponsor professional foreign workers in high skilled “specialty occupation” positions. These positions require at least a bachelor’s degree or its equivalent.
A new H-1B visa petition can be filed as a change of status if the H-1B beneficiary is already in the U.S. in another status (typically F-1), or through consular processing if the beneficiary is not in the U.S.
How do I qualify for the H-1B visa?
Generally, the H-1B position must be considered a “specialty occupation.” There are four ways that an H-1B can be considered a specialty occupation, which are detailed under federal regulation 8 C.F.R. 214.2.
In addition, the H-1B beneficiary must be qualified for the specialty occupation position. For example, an individual holding a Bachelor of Science in Chemical Engineering from an accredited institution could be considered qualified for a chemical engineering position. Whereas, an individual with a Bachelor of Science in Mechanical Engineering may not be qualified for the same position, unless perhaps they meet an exception by having work experience. To see whether your specific degree may qualify or whether you qualify for an exception, it is best to seek a case assessment from immigration counsel to accurately determine your case.
What is the H-1B cap? What is the H-1B lottery?
There is a limit to the number of H-1B visas made available each fiscal year (FY). The H-1B cap allows for 65,000 H-1B visas for those beneficiaries holding a bachelor’s degree and allows an additional 20,000 H-1B visas for those beneficiaries holding a U.S. master’s degree or higher each year.
Currently, there are more petitions filed than visas made available. Therefore, a lottery system is in place that selects petitions at random to be considered. For sometime now, the annual cap has been reached within the first week of April concluding acceptance of any new filings once the cap limit is reached.
What degree the H-1B holder possesses determines whether their petition will be filed in the bachelor’s cap or the master’s cap. In order to determine which cap category is best, a thorough screening must be done including a review of the accreditation of the university or institution awarding the degree. University accreditations do change from time to time, so it is important to determine degree accreditation before choosing to file in the master’s or bachelor’s cap to avoid any issues that may lead to an H-1B denial.
What is the deadline to file a new FY 2019 H-1B case?
USCIS will begin accepting new H-1B cases for FY 2019 beginning April 3, 2018. Filing will begin April 1st.
What is the process for filing a new H-1B?
The following is a brief snapshot of the step-by-step process of filing an H-1B.
- An H-1B employer must submit a labor condition application with the Department of Labor.
- Form I-129 Petition for Nonimmigrant Worker is prepared and supporting documents are gathered.
- The petition must be filed with the appropriate filing fees at the appropriate service processing center.
- If selected in the H-1B lottery, the H-1B petition is reviewed by USCIS. USCIS will then approve the petition, send a request for additional evidence (RFE), or deny the petition. If not selected in the lottery, the petition is rejected and returned.
If I file in the master’s cap, will my H-1B petition have a better chance of approval?
No. It is a common misconception that because more visas are available for U.S. master’s degree holders that the master’s degree itself means that the H-1B has a greater chance at being approved.
Can I file multiple or duplicate H-1B filings for the same employee?
No. Employers are not allowed to file multiple or duplicate H-1B filings for the same employee.
In 2018, are there any new laws or requirements to know of when filing in the new H-1B lottery?
In the last year, there has been increased H-1B scrutiny and enforcement by DHS, however as of date there are no new laws or requirements on the books yet. It is unlikely that any changes to the H-1B program will be experienced in time for the 2019 FY cap season deadline. KNG Law actively tracks and analyzes changes to the H-1B program. Stay connected for the most recent and up-to-date H-1B news, trends, and updates.