Changes to the H-1B Visa Process for Fiscal Year 2021

Applying for An H-1B For Fiscal Year 2021

Overview of the H-1B Visa Category and summary of the proposed changes to the lottery process that may go into effect for the 2021 H-1B cap year.

What is an H-1B Visa?

An H-1B Petition allows companies in the United States to employ foreign workers in positions that require at least a bachelor’s degree (or its equivalent) in the field of endeavor. This is important. The USCIS is highly scrutinizing cases where the Beneficiary’s degree field does not “closely” match the field of work.

Petitions can be filed for beneficiaries already in the U.S. in another valid status, such as F-1 student status, as well as those outside the U.S.

If the Beneficiary has never held H-1B status in the past, they will likely be subject to the annual H-1B Cap limitation unless they will work for an institution of higher education, certain affiliates of an institution of higher education, or a governmental non-profit research organization.

Currently, there are 20,000 H-1B “Master’s cap” slots available for those who have earned a U.S. Master’s degree from an accredited university in their field of endeavor. There are 65,000 “regular cap” slots that are open to all qualified applicants. This to be discussed in further detail below.

Employer Requirements

Employers must first obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor confirming that the employer will pay the local prevailing wage or the wage offered to similarly employed U.S. workers, whichever is greater.

To file the H-1B Petition, the employer must, among other things, demonstrate that 1) the position is a specialty occupation; 2) that an employer-employee relationship will exist between the parties; and 3) that the employer has the ability to pay the wage offered as per the certified LCA from the DOL.

Employers should seek advice and guidance from a Board-Certified Immigration Attorney to help ensure their company will meet these requirements prior to filing. Please note that individuals cannot petition for themselves.

Beneficiary RequirementsChanges To The H-1B Visa Process

The Beneficiary must have earned at least a Bachelor’s level degree in their field of endeavor at the time of filing the H-1B petition. If they are in the U.S. and seeking a “Change of Status”, they must also establish that they are maintaining valid status at the time of filing or they must process their nonimmigrant visa application in their home country. This is referred to as “Consular Notification” and also applies to Beneficiaries that are not in the U.S.

How Long Can You Stay in the U.S. in H-1B Status?

If you’re an H-1B nonimmigrant, you can be admitted to the United States for up to 3 years. In some cases, your time period can be extended, but typically, you can’t go beyond a total of 6 years. There are some exceptions available, though, which your business immigration attorney can explain to you.

What if You Leave Early?

If your employer terminates you before the end of your period of authorized stay, your employer is liable for the reasonable costs of your return transportation. Your employer is not responsible for the costs of your return transportation if you voluntarily resign or quit.

What About Families On H-1B Visas?

If you’re married, or if you have unmarried children under the age of 21, you may be able to bring your family as H-4 nonimmigrants.

Premium Processing for H-1B Visas

Premium processing, a service the federal government provides that promises employers a judgment within 15 days, may be an option for this year’s H-1B visas that are subject to the cap. U.S. Citizenship and Immigration Services charges employers an additional fee of $1,410 for this faster processing service. The USCIS will issue guidance on premium processing service in the coming months. Stay tuned!

A Reversal Of The H-1B Selection Process That Was Implemented in Fiscal Year 2020

For Cap Year 2020, the USCIS reversed the order that H-1B visa cap cases are selected.

Previously, the government used a lottery process to award visas to 20,000 advanced degree holders first. Those who didn’t win a spot in the lottery were able to get a second chance with all the other H-1B visa petitioners.

Now, the USCIS runs the regular H-1B cap lottery first with all advanced degree earners included. Then, the remaining applicants will go into a second lottery where only U.S. Master’s degree candidates will be considered.

The first lottery is for 65,000 people. The second-chance lottery will fill the remaining 20,000 spots available. USCIS projects that this new process will result in more than 5,300 additional H-1B visas going to people with advanced degrees.

What About The Proposed Changed to the 2021 H-1B Cap Season?

The USCIS will likely implement an online H-1B registration system for the upcoming 2021 cap season. The system will require that employers submit an online registration form for each prospective H-1B candidate before filing season begins in April, possibly as early as January 2020. The public will receive 30 days notice of the opening of the registration period.

USCIS will conduct a lottery of the registrations and will send selection notices to successful Petitioners, who would then be permitted to file full H-1B petitions for adjudication on behalf of Beneficiaries whose registrations were selected. USCIS has also proposed to charge a $10 fee for each registration.

Registrations will consist of providing basic information about the employer, employee, job and the employee’s education. This program will likely give preferential treatment to Applicants with U.S. Master’s degrees in their field.

Stay tuned for up-to-date announcements.

Should You Work With an Attorney for an H-1B Petition?

Labor Certificate U.S. Department of Labor

Yes! If your company is interested in hiring foreign workers, working with a board certified Immigration attorney helps ensure that your paperwork is filled out and filed properly and timely. Your lawyer will answer your questions and provide you with case-specific legal guidance that you won’t be able to get online.

If your company is considering bringing in foreign workers, we may be able to help you. Get in touch with us today to find out how we can help – and we’ll be happy to answer all your questions about the new H-1B visa processes taking effect in FY 2020.

About Davis & Associates:

Davis & Associates is the immigration law firm of choice in Texas including Dallas Fort Worth, Houston and surrounding areas. Their attorneys provide expert legal counsel for all aspects of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals. Attorney Garry L. Davis is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.