Begin Work on H-1B Petitions Now; H-1B Tips for Employers

February 7, 2019

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.

We 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.

Fredrikson & Byron attorneys recommend 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.

Contact our attorneys for advice and help with preparing H-1B petitions.