SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

All H-1B cap cases must be filed by April 1, 2019.  In anticipation of that deadline, here are seven things to remember about the H-1B cap.

 

1. These types of cases are subject to the H-1B cap: 

·    International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;

·     International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;

·     Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and

·     Prospective international employees currently living abroad.

 

2. These types of cases that are not subject to H-1B cap: 

·     H-1B amendments/extensions/transfers

·     When the employee has been in H-1B status for less than 6 years

·    Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada,  Mexico

·     MDs who have received a J-waiver of their 2 years foreign residency requirement.

·     H-1Bs filed by institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.

 

3.  Employees with a U.S. master’s degree or higher get two chances at the H-1B cap.  The USCIS first runs an H-B cap lottery, including all cases.  This is for the 65,000 H-1B regular cap slots.  Then, the USCIS runs a Masters Cap H-1B lottery to determine 20,000 lottery winners. 

 

4.  Cap-Gap Rule: USCIS automatically extends the H-1B status of OPT F-1 students who win the H-1B lottery.  The OPT F-1 status is extended through October 1, at which point the status converts to H-1B by operation of law.

 

5. An Employee does not have to hold H-1B status for the employer to initiate green card process. This can be started while the employee is on F-1 or most other statuses.

 

6.  We do not recommend that F-1 students travel outside the US while their H-1B cap petition is pending at USCIS.  USCIS may consider the petition to be abandoned.  If the F-1 student does travel, the employee is required to apply for an H-1B visa abroad before re-entering the US.

 

7. The employee’s proposed worksite may not change until the H-1B CAP petition is approved.  If the worksite changes the USCIS is inclined to deny the case.  If possible, the H-1B cap petition should be upgraded via Premium Processing.  Upon approval of the H-1B, the employer can file an H-1B amendment.

STAFFING AND SERVICE COMPANIES UNDER ATTACK FROM USCIS

Staffing companies are under attack from the USCIS.  H-1B denial rates at service and staffing companies greatly exceed H-1B denial rates at non-staffing companies.  For instance, a recent Forbes article points out that,
 

“In FY 2018, USCIS denied 80% of the H-1B petitions for new (initial) employment for Capgemini, a French multinational, 61% for U.S. company Cognizant, and between 34% and 54% for IT services companies Syntel, Infosys, Mindtree and HCL America. To put these figures in perspective, major U.S. tech companies, including Amazon, Facebook and Apple, had 1% or 2% of their new H-1B petitions denied in FY 2018.”

The problem was once limited to IT staffing companies, but MU is aware of many healthcare staffing companies who are also seeing unprecedented RFEs.  A recent change to the LCA form now requires all H-1B employers to reveal client names and worksites. 

Adding to the concern is the long-rumored H-1B regulatory change that will cement current H-1B policies against third-party placement of H-1B workers, make a stricter definition of specialty occupation, and raise prevailing wages.  If past changes are any guide, these regulatory changes will probably have little basis in Congressional statute.