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USCIS Has Received Sufficient Number of H-1B Cap Cases – Now What?

April 9, 2019

On April 5, USCIS announced that it has received a sufficient number of H-1B petitions to meet the Congressionally mandated 65,000 H-1B regular "bachelor's degree" cap cases for this fiscal year.

USCIS will next determine if it has received a sufficient number of petitions to meet the 20,000 H-1B advanced degree exemption petitions, known as the "master's cap," which USCIS is expected to announce soon.

USCIS further announced that once it does reach the cap of H-1B permissible submissions, it will reject and return filing fees for all petitions not selected and those that are not prohibited through multiple filings.

What This Means for U.S. Employers

Employers will be barred from filing any further H-1B cap submissions until April 1, 2020. While there is some chance that USCIS will accept additional advanced degree cases beyond April 5, it is expected that the final date for acceptance of all fiscal year 2020 cap submission will be April 5.

For those petitions submitted and accepted for processing, receipts should be issued within weeks after the lotteries have been completed. Any U.S. petitioner requesting premium processing for H-1B cap changes of status may receive filing receipts within days after the selection process, but USCIS has stated that it will not commence adjudicating such petitions until May 20. It may take more time for USCIS to complete the initial data entry and issue filing receipts for H-1B cap filings filed through regular, non-premium processing.

USCIS has further advised that initial processing of premium cases should be complete by June 4. Employers should expect approvals, denials or Requests for Evidence (RFEs) concerning those cases.

Standard H-1B cap filings - those cases filed without premium processing requests or those filed without change of status requests - should be worked on in June, but USCIS indicated they may be processed earlier.

The timing of returns of rejected H-1B petitions is not yet known. Traditionally, the full H-1B package, including canceled checks, is returned during the summer months.

H-1B cases not affected by this season's filing include H-1B petitions submitted by institutions of higher education, research institutions, extensions of stay for H-1B visa designates and new employer petitions for individuals already holding H-1B status.

Should the cap season end without a favorable decision in your case submission, contact our Immigration Group to assist you and your company in seeking alternatives for employees who may be eligible for other nonimmigrant visa options for purposes of employment in the United States.

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