UNITED STATES: USCIS FY 2020 H-1B Cap and Premium Processing [UPDATED]

[UPDATE]

*Phase one commenced on 1 April 2019, allowing H-1B lottery petitioners applying for a change-of-visa status to file a request for premium processing concurrently with their H-1B petition. USCIS began processing those requests on May 20, 2019.

*On June 10, 2019, USCIS announced the commencement of phase two, allowing premium processing for all other FY 2020 H-1B cap-subject petitions, including those petitions requesting consular notification. 

On 19 March 2019, US Citizenship and Immigration Services (USCIS) announced a two-phase approach to premium processing for H-1B cap petitions when the FY 2020 filing period begins on 1 April 2019.

The first phase will include FY 2020 H-1B cap petitions requesting a change of status, and the second phase will include all other FY 2020 H-1B cap petitions.

Currently, premium processing is available for all non-cap subject H-1B petitions, including extension of stay and change of employer requests.

First phase

In the first phase, petitioners filing H-1B cap petitions with change of status requests may concurrently request premium processing service by filing Form I-907 when the H-1B cap petition is initially filed.

While USCIS will not begin premium processing these petitions immediately, it will commence premium processing for these cases not later than May 20, 2019. USCIS will notify the public as to the precise date that premium processing service for these petitions begins.

Petitioners who file change of status H-1B cap petitions without concurrently filed premium processing requests will also have the option of interfiling premium processing requests once premium processing service for these petitions begins.

Second phase

The second phase of premium processing will include all other FY 2020 H-1B cap petitions (i.e., all petitions that do not request a change of status on Form I-129). USCIS indicates that premium processing for these petitions will not begin until at least June 2019.

Once USCIS establishes the effective date for phase two, employers may interfile Form I-907 to request premium processing service for these H-1B cap petitions. Employers may not request premium processing service for these cases until USCIS establishes the effective date.

Background

Premium processing

The premium processing service permits employers to request USCIS to adjudicate H-1B petitions within 15 calendar days by submitting Form I-907 (Request for Premium Processing Service) and an additional filing fee of USD 1410. If USCIS does not take certain adjudicative action within the 15 calendar day processing time, USCIS refunds the petitioner’s premium processing service fee and continues with expedited processing of the petition.

Premium processing for FY 2019 H-1B cap petitions was suspended effective 2 April 2018, and the suspension was later extended and expanded. On 28 January 2019, USCIS resumed premium processing for all fiscal year (FY) 2019 H-1B cap-subject petitions, and on 19 February 2019 for pending H-1B petition filed on or before 21 December 2019. On 12 March 2019, USCIS resumed premium processing for all H-1B petitions.

H-1B Cap selection process

In January, the Department of Homeland Security announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, which will be in effect for the FY 2020 cap season. This simple change increases the chances that more of these visas will be granted to those with an advanced degree from a US institution of higher education.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Congress has set a cap of 65,000 H-1B visas per fiscal year. An advanced degree exemption from the H-1B cap is available for 20,000 beneficiaries who have earned a US master’s degree or higher from a US institution of higher education. The agency will monitor the number of petitions received and notify the public when the H-1B numerical allocations have been met.

Our Advice

Employers who may be affected are encouraged to contact their Newland Chase immigration specialist for case-specific advice.

For general advice and information on immigration and business travel to the US, please email us at enquiries@newlandchase.com.