H1B Visa Program Updates: FY2019

The FY2019 lottery is less than a month away, and the USCIS has come out with a few tips and comments about this year’s process and petition review.  We have summarized the highlights for you:

April 2, 2018 Officially Announced as FY2019 Program Date

Despite the fact that April 2 is “Easter Monday” and a holiday for many US workers, it is not a federal holiday so the USCIS has announced that they will begin accepting applications that day for the FY2019 lottery.  

The number of H1B visas awarded has not changed, and the cap-exempt category continues to be available as well.  Petitions will be accepted for five days, until all of the 85,000 visas have been awarded in the lottery.

The USCIS Rule on Starting a Specific Work Start Date for All H1B Visas

All H1B visa petitions must be submitted no more than six months prior to the start date of employment, and the USCIS has reiterated the need for a specific date and not to use vague terminology or timing.  They stated:

“Applications without a specific start date will be rejected.  Words like ‘ASAP’ or ‘subject to approval’ will be rejected.”

Naturally, employer/sponsors like to keep their options open when it comes to stating a date, but this is one more example of how the USCIS will be strictly interpreting existing rules and criteria this year, to the extent that lack of a start date will mean automatic rejection of the petition.

New USCIS Comments on the Definition of ‘Specialty Occupation’

In a recent 90-minute phone conference, USCIS officials stated that for a position to qualify as a ‘specialty occupation’ that they will “subject H1B applications to strict standards that can stand the test of time over various cultures and perceptions of ‘high skilled’ (workers).”

This is fairly odd comment, and open to wide interpretation and agency discretion.  For example, what is viewed as highly skilled in one culture, may not meet the USCIS criteria for a specialty occupation.

Spouses of H1B Workers with an H4 Visa Given a Reprieve

As we reported, the H4 spousal work visa is being reviewed and could be eliminated.  However, the Department of Homeland Security has decided that it would not make a decision until June, and any change would likely not take effect until 2019.

This is a relief to families who rely on the H4 working spouse for income and gives them more time to plan for alternatives.

The Key Takeaway: Agency Discretion

Anyone following the evolution of change in the H1B visa program will notice that almost every rule change or announcement places more discretion in the hands of the immigration and security agencies in charge of the program.  The increase in Requests for Evidence, on-site inspections and criteria enforcement all are based on the discretion of agency personnel to apply the H1B requirements as strictly as possible.

As we have pointed out in our blog, this has been the primary strategy by the Trump administration to narrow the H1B program without actually passing any new laws.  Nonetheless, by April of this year another 85,000 H1B visas will be awarded, and the only real difference is that those whose petitions are approved will have certainly met the core criteria.  There may be fewer outsourced IT workers in the mix or entry level data programmers, but there will still be a new group of skilled foreign workers who can begin their H1B position in October.

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  • May 15th, 2018
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