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H-1B Season – After the Lottery

United States Citizenship and Immigration Services (USCIS) announced Friday that it has completed the selection process for 2020 H-1B cap petitions for the U.S. advanced degree and general lottery. At this point, USCIS is continuing to issue receipt notices for H-1B petitions and will begin returning unselected petitions. Notifications should continue through the end of the month and unselected petitions should be returned to the filing parties (employers or attorneys) through the month of June.

With premium processing for H-1B cases begins May 20, it is time for employers and individuals to take stock of where they are in the H-1B petition process. For those who have already been selected, this can be nerve wracking time, as USCIS begins to review petitions. For those not selected, it might be time to consider visa alternatives to the H-1B. In this blog, we will provide a brief overview of both scenarios. If you are an H-1B employer and you would like more information, contact us for a free 30-minute consultation, or download our comprehensive H-1B Guide for Employers.

H-1B Petition Processing – What to Expect

Selection in the lottery is the first, but not only, hurdle to overcome. Once an application has been selected, it will be processed by USCIS. During the petition processing, USCIS will vet the job description, wage information, and candidate qualifications, as well as perform background checks on the candidate. If discrepancies are found, USCIS will submit Request for Evidence (RFE) to support the claims made in the petition.

In 2019, we expect to see continued scrutiny of H-1B petitions. Under President Donald Trump’s “Buy American, Hire American” directive, USCIS issued policy memoranda which had broad impacts to the H-1B visa petition process in 2018 – including RFE increases of more than 45%. Employers must stay abreast of the latest changes in immigration policy. It is critical, now more than ever, to have an immigration attorney who can help you navigate these turbulent times.

The increase in RFEs in 2018 took many employers off guard, as applications once considered routine were flagged with RFEs. Common reasons for RFEs include discrepancies in the job description or wage information or an incomplete LCA. Learn more about reducing your chance for RFEs here.

H-1B Alternatives

For those employees that are not selected in the H-1B Cap Lottery, what are the top three options Employers to keep these Employees “on-board”?

  • The Foreign National Employee could enroll in a Master Degree or other degree program to maintain their F-1 status and continue in employment, albeit part-time, with the Employer under F-1 Curricular Practical Training;
  • The Foreign National Employee could depart the US for a 90-day period upon completion of the OPT status, and then apply for a J-1 Trainee status to continue in their entry-level employment/training;

Or, the Employer can also explore other potential nonimmigrant visa options:

  • O-1 visa – if the candidate has an advanced degree, extensive publications/citations, awards in their field, and/or other evidence toshow they are one of the leading individuals in their field of work, an employer can sponsor on an O-1 Visa;
  • TN visa – If the candidate is a citizen of Canada or Mexico, an employer can sponsor on a TN visa;
  • E-3 visa – If the candidate is a citizen of citizen of Australia, an employer can sponsor on an E-3 visa;
  • H-1B1 – If the candidate is a citizen of Singapore or Chile, an employer can sponsor on an H-1B1 Free Trade application.

If you have questions about your applicants or even a new hire that you were considering for an H-1B but now need to seek alternatives, we are happy to help you work through the challenge. Sign up for a consultation today.