USCIS Regulations From 2019 That Will Impact The 2021 H1-B Lottery

Posted on January 07, 2020
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A crystal Ball predicting H1-B visa trends in 2020

Just as every foreign worker is gearing up for the next H1-B cap lottery scheduled for April 1, 2020, Path2USA reviews the many changes that were proposed and implemented last year. Which one of those will have an impact on this year’s H1-B cap lottery? It is safe to say that 2019 witnessed a series of headlines about immigration policies and each one brought on an adverse reaction. Based on past trends and recent announcements, the following gives an estimate of what to anticipate in the coming months.

Online Registration for H1-B Petitioners

Starting March 1, 2020 USCIS will begin accepting online registrations from companies that want foreign workers to work onsite in the US. They will first have to submit preliminary information about themselves as well the worker with a $10 fee and go through a selection process determined by USCIS. Only after being selected through this process can the petitioner participate in the random lottery.

<b>Anticipated Impact in 2020:</b> This is a new process that is going to be tested for the first time this year. Anticipated glitches coupled with an onslaught of additional filings could lead to delays in processing and final joining dates can go beyond the traditional October 1, 2020.

H1-B Denials

2019 saw an unprecedented increase in denials in H1-B and L-1 Visa applications. These were for reasons ranging from missing employer-employee relationship to the lack of possessing sufficient qualifications for a specialty occupation. 

Anticipated Impact in 2020: The H1-B visa denials are expected to continue as the Trump administration intends to bolster their agenda of “Buy American, Hire American”. This should be even higher for workers applying to work in third-party sites. If the employer is unable to establish that they will be governing the work responsibilities and duties of the employee at the third-party site, the scope for denial increases double-fold.

H-4 EAD

In 2017, a proposal to rescind H-4 EAD was initiated which was subsequently halted by a court injunction. 2019 saw much debate and litigation in favor of allowing spouses of H-1B visa holders and proving that they do not take jobs away from American workers.

Anticipated Impact in 2020: A final decision is expected by March 2020 and when Senate is going to make a final ruling about the rights of H-4 EAD workers. Should the ruling become final, we should continue to anticipate litigation that seeks an injunction to block the regulation. Until then, eligible H-4 EAD workers should continue applying and working.

Third-Party Out-sourcing Firms

In 2019, many third-party outsourcing firms especially based out of India and explicitly sending foreign workers to work for US employers were targeted and their H1-B petitions denied. Data shows that only two Indian companies among the top ten visa recipients got (1,966) visas compared with 8,898 for the other eight US based firms. 

Anticipated Impact in 2020: The numbers show that this has been an ongoing trend and is expected to continue in 2020. While the new online registration process is bound to reduce the number of applications from foreign consultancy firms that will go through the final stage of the random lottery selection, the scrutiny will continue to be strict.

Specialty Occupation

A core requirement for a H1-B visa is being proficient in a ‘specialty’ occupation. USCIS has been attempting to redefine this and what qualifies as ‘specialty occupation’. As a result, 2019 saw many more denials based on how many of the petitions did not ‘qualify’ under this requirement.

Anticipated Impact in 2020: Once the definition is rephrased, one should expect greater scrutiny of H1-B applications and increased denials for those that do not conform to the narrow requirements of specialty occupation. Here’s everything to know for the supporting documentation required to prepare for an H1-B specialty occupation petition.

Site Visits

Site visits quadrupled in 2019. Officers made both surprise and announced visits to several companies that were predominantly occupied by H1-B foreign workers. Immigration policies and workplaces were investigated and workers questioned about their duties, their reporting structures and salaries. 

Anticipated Impact in 2020: USCIS has allocated an additional budget for such exercises for 2020 and organizations should continue to expect more and continued site visits. They can do several things to remain prepared and meet the needs of such visits.

Increase in Filing fees

Several employment-based immigration petitions are filed at a steep cost to the sponsoring employer. A proposal to increase the filing fees for many of these petitions was made in 2019. Some of these are suggested to increase by 50%.

Anticipated Impact in 2020: If the proposal gets approved and the probability of it is quite high, employers of temporary foreign workers should expect to pay double the amount of filing fees the already high fees they have been paying until now. This will be applicable to both new petitions as well as extensions. And will affect employers who are more H-1B dependent than others.

For any changes or updates on the H1-B scene in 2020, stay tuned as Path2USA keeps you abreast with the latest in news.

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