What Can Employers Expect with H-1B Cap FY 2020?

It’s that time of year again!  Employers are busy looking at their current workforce and determining if any of their work authorized individuals are eligible, or should be considered, for sponsorship as an H-1B. Candidates requiring sponsorship are being more seriously considered. So, what employees already on your roster, or soon to be added, may benefit from this category?

The H-1B is the annual, numerically limited work category for those in ‘specialty occupations’.  See our recent blog: https://www.immigrationissues.com/h-1b/h-1b-lottery-dreams-fiscal-year-2020 for more information on the cap.   The term “specialty occupation” for the H-1B is defined at 8 C.F.R. § 214.2(h)(4)(ii) as…an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

INA §214(i)(2) outlines the fundamental requirements of a specialty occupation including: a) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation; b) completion of the degree described in paragraph (1) for the occupation; or c) (i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

So far, the analysis is pretty straight forward.  Have an employee who just finished their bachelor’s degree in accounting and is working pursuant to Optional Practical Training (OPT) as an accountant for your company?  Great! Now’s the time to begin the preparatory steps to filing the H-1B.

Putting together the filing with USCIS requires a good understanding of both the employer/position and the immigration laws, regulations, and policies for this category.  In years past, following USCIS instructions and submitting a barebones petition could end up passing muster and allow for H-1B approval.   This year, however, we have two related and difficult new policies to deal with – both of which may end with an unforgiving, outright denial of the request.

As previously provided (https://www.immigrationissues.com/immigration-news/change-policy-reason-hire-immigration-lawyer-or-glad-did) one new policy for USCIS adjudicators removes second chances.   Adjudicators are now able to reject and deny petitions with unlimited discretion when all ‘evidence’ is not provided in the initial filing. The new guidance provides that Adjudicators are not required to issue a Requests for Evidence.  What that means is that if your petition is not perfect upon submission with each and every element included at filing, it may be denied.

The second policy in effect is the Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference-PM6020151.pdf.   Although this guidance specifies its application to extension requests, practically we see it being applied to occupational initial requests as well.  For example: a specialized software application company’s prior petition for a software engineer in a highly unique and specific capacity that has previously been approved for a different foreign worker is denied when filing an initial request for a new worker.  There is no reliance on prior approvals available in the current adjudicatory posture at USCIS.

For employers who value the highly educated, dedicated, and distinct foreign employee, the H-1B category is invaluable to being able to hire and leverage these individuals in the U.S. workforce.  Don’t be fooled by the initially simplistic analysis and basic form instructions from USCIS that create the appearance of an easy process. Be sure that you have a professional on your side that knows the ins and outs of H-1B and current adjudications.

If you’re an employer seeking to sponsor a new cap-subject H-1B employee, contact our office for a consultation.  If you’re an individual and believe that you are eligible for H-1B and have a sponsor, contact our office for a consultation.