Legal Alert

Mark Your Calendars: H-1B Fiscal Year 2020 Season Is Right Around the Corner

February 11, 2019

Want to hire a skilled foreign worker? Don't delay, act now!

The H-1B visa allows companies in the United States to temporarily hire foreign workers in occupations requiring the theoretical and practical application of a body of highly specialized knowledge, and a bachelor's degree or higher.

The H-1B filing season for FY 2020 starts April 1, 2019, for employers that wish to sponsor a full-time H-1B employee during the fiscal year—which runs from October 1, 2019, to September 30, 2020.

Typically, the filing window for H-1B visas is open for just one week, as the quantity of petitions received by U.S. Citizenship and Immigration Services (USCIS) quickly exceeds the amount of available visas. Last year, USCIS reached the cap within five days, receiving more than 94,000 petitions by April 6, 2018.

To file an H-1B petition, employers must first obtain a certified labor condition application (LCA) from the Department of Labor (DOL), which contains wage and location information about the proposed employment. Employers should allow sufficient time to obtain a certified LCA as the process currently takes seven to 10 days. It is highly recommended that employers obtain a certified LCA by March 15, 2019, to ensure the H-1B petition is filed timely on April 1.

Every year, USCIS grants 65,000 new H-1B visas. In addition, USCIS grants 20,000 new H-1B visas for employees with advanced degrees from U.S. universities. H-1B visas are granted for three-year periods to eligible foreign workers and are renewable for up to six years. Employees with H-1B visas are authorized to work only for the petitioning employer.

USCIS uses a random selection process, or "lottery," to determine which petitions will be accepted for consideration. Once all the available visas have been granted, no new H-1B petitions will be accepted until April 1, 2020. Employers should assess their workforce needs well in advance of April 1, 2019, in order to determine whether they want to hire a foreign worker who will require an H-1B visa in order to be eligible for employment in the United States.

For example, many employers in the Science, Technology, Engineering and Mathematics—or STEM—field hire students who are foreign nationals who have recently graduated from U.S. universities. The work authorization associated with student visas is temporary, however, and many employers wish to retain these individuals on a longer-term basis. In order to do so, employers often file H-1B petitions on behalf of those foreign nationals.

Indeed, the H-1B petition requires information from the employer and the employee, so the parties must work together to prepare the petition. Employers should have all their petition documents ready by March 29, 2019, so they can be filed on April 1, 2019.

The April 1 filing window does not apply to employees who are extending or transferring their current H-1B status. It also does not apply to "cap-exempt" employers, including government research groups, institutions of higher learning, and nonprofits.

Employers interested in filing an H-1B petition, or uncertain whether the April 1, 2019, filing window applies, should contact counsel promptly.

Attorneys in Ballard Spahr's Labor and Employment Group routinely assist employers in filing H-1B petitions and determining what employment-based visas meet their business goals.

Copyright © 2019 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.

This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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