Alliance of Business Immigration Lawyers (ABIL) attorneys recommend that employers assess their need for H-1B employees and begin working on their H-1B petitions now. Filing season is expected to open April 1, 2019, for fiscal year (FY) 2020 cap-subject H-1B visas. Annual demand typically far outstrips availability, so the visas are snapped up immediately.
ABIL recommends the following ways for employers to maximize their H-1B chances:
- Apply based on a master's degree from a U.S. nonprofit university as long as all degree requirements were completed before April 1
- Ensure a close match between the course of study and job duties
- Apply concurrently for optional practical training (OPT) or STEM OPT and H-1B
- Apply for "consular notification," not change of status, to preserve OPT if OPT lasts beyond October 1
- Apply for "change of status" if OPT expires before October 1 to preserve work eligibility under "cap gap" policy, but avoid travel
- Choose O*NET code and wage level carefully
- If more than one field of study could qualify a person for the position, explain task by task how the position requires the education
- Be careful of Level 1 wages. Instead, obtain an acceptable prevailing wage from a legitimate source other than the Department of Labor, offer to pay a higher wage from the outset, or explain why this particular job is both entry level and qualifies as a "specialty occupation"
- Consider other visa options if your employee is not selected in the H-1B lottery
- Check the USCIS website for changes to form, fee, and filing location
The Department of Homeland Security (DHS) published a notice of proposed rulemaking on December 3, 2018, that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with USCIS during a designated registration period. USCIS said the proposed rule would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption, with the goal of increasing the number of beneficiaries with master's or higher degrees from U.S. institutions of higher education to be selected for H-1B cap numbers and introducing "a more meritorious selection of beneficiaries." It is unclear, however, if the rule will be finalized and implemented in time for the start of the H-1B filing season on April 1.
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