14 Mar H-1B 2020 Cap Season Frequently Asked Questions
It’s that time of the year again – when immigration lawyers around the country go into overdrive to prepare and file all their H-1B cap petitions. Effective communication between the legal team, the sponsoring company, and the employee helps facilitate a smooth process for everyone involved. To that end, below is a brief Q&A of some of the most common questions we receive here at ALG about the H-1B cap process.
What is the cap and am I exempt?
Every year H-1Bs are capped at 65,000 new visas, with an additional 20,000 available for individuals with an advanced degree from a US institution (referred to as the master’s cap). When more petitions have been submitted than there are visas available, USCIS conducts a random lottery. Having a master’s degree may increase the likelihood of selection this year as USCIS is reversing the lottery order. Under the new rule, all petitions will enter the lottery, and once the first 65,000 have been selected, those applicants with an advanced degree from a US institution will enter the master’s cap lottery for a chance at being selected for one of the 20,000 available master’s cap visas. USCIS estimates this will result in a 16% increase of individuals selected for H-1B possessing a master’s degree compared to last year when master’s cap was selected first. If your petition is being prepared this month you are likely subject to the cap. If you are transferring your H-1B, amending it, or working for an institution of higher education, a non-profit associated with an institution of higher education, or a non-profit research or government organization, you may be exempt from the cap.
Will the quota be reached this year?
Likely, yes. Last year 190,098 petitions were filed with USCIS. Despite slower adjudication and increased requests for evidence (RFEs), demand is still high. Additionally, since USCIS has begun the process to revoke H-4 work authorization there may be an increase in H-1B filings for eligible H-4 visa holders.
Will I get an RFE?
RFEs have increased dramatically for almost all visa types. Based on the past two years we have learned what to avoid and what USCIS prefers but receiving an RFE is still statistically likely. USCIS has particularly increased scrutiny on SOC codes, job duties, and educational requirements, but we have seen all types of RFEs. Through coordination between the legal team, the employer, and the beneficiary employee, we will work expeditiously to respond to any RFE in order to get the visa approved.
Can I travel while my H-1B is pending?
H-1Bs were still being adjudicated well past the October 1st start date last year, and this year will probably be just as slow. As approval takes longer, many people may wish to travel while their petition is pending. We recommend that you do NOT travel during this time because if you have a pending change of status (CoS) request for H-1B and you leave the country, then your CoS request will be considered abandoned. If you travel and abandon your CoS request, then when your H-1B is approved when you are back in the US, you will be required to leave the country to get your passport stamped at a consulate abroad. This can sometimes be time-consuming and more expensive than remaining in the US.
What happens if my petition was not approved?
Unfortunately the lottery system is indifferent to how qualified or necessary an individual employee is. If you or your employee are not selected during this year’s H-1B cap, please contact us and we can look into other options. Our team at ALG has years of experience with all types of employment visas and another option may be available in lieu of H-1B.
The above does not constitute legal advice.
At ALG, most of our staff has personal experience with the U.S. immigration system. We channel this experience into our work to provide the best possible service to our clients. Our passion for the field drives us to stay on the cutting edge of U.S. immigration law.
Get in touch with our experts for your immigration needs. Call our office directly at (512)732-0555, or email us at [email protected].