What To Expect This H-1B Filing Season

The start date for filing H-1B petitions for the fiscal year 2019 is fast approaching. With the continued efforts of the current administration to tighten the reins on high skilled-immigration, many are wondering what to expect this H-1B filing season.

The H-1B visa is a non-immigrant visa which allows US employers to employ foreign workers in specialty occupations. A bachelor’s degree or higher is required for a specialty occupation. Congress has set the cap on H-1B visas at 65,000 with an additional 20,00 visas available for U.S. master’s degree holders. 6,800 visas are set aside for Chilean and Singaporean citizens.

Although there have been changes to the guidelines used for adjudication, nothing in the law has changed about the H-1B visa. Petitioners can expect increased scrutiny of their visa application, more requests for evidence, and more denials. In 2017, there was a 40% increase in the number of requests for evidence sent to applicants. Employees who are paid a level 1 wage will also face additional scrutiny as USCIS determiners rather a level 1 wage is truly a specialty occupation.

USCIS Officials have pointed to a temporary delay in the premium processing option this year. Multiple agency attorneys have stated that the option will be delayed but not suspended as it was last year.

Last year, premium processing for H-1B visas was suspended for several months. Premium processing allows petitioners to receive a response to their H-1B visas application in 15 days for a $1,225 fee.

Immigration officials often delay premium processing for a few weeks to deal with the copious amounts of applications they receive, but last year’s 6-month suspension was new. This year, applicants are wondering if there will be a similar suspension, a delay, or business as usual.

There will also be a crackdown on third-party employment arrangements. A February 22 policy memorandum released by USCIS added additional restrictions for employees who will be working at third-party sites. USCIS will be requesting additional evidence that an employer-employee relationship is maintained at the third-party worksite. Moreover, the three-year duration of the visa may be shortened if the employer cannot prove the employee is needed for the full period.

The current administration has set the tone for more challenging H-1B seasons than we’ve seen in previous years. The H-1B is integral to enabling U.S. business, particularly tech firms, to hire the high-skilled immigrant talent they need. The H-1B visa is an economic driver, and it can only be hoped the current administration will begin instituting high skilled immigration policies with the best interest of the economy and the American people in mind.