H1B 2019 | New Lottery Rules, Changes, and FAQs



This article explains the H1B 2019 changes and proposed rules affecting the program. Premium processing is suspended, there are new LCA requirements, and the lottery selection process may be changing.

New H1B 2019 rules, changes, and issues to consider.

The H1B visa is a highly sought-after immigration category. Qualified foreign nationals use the visa to build a career and life in the United States. The visa provides a path to a green card. It is given to individuals who work in a specialty occupation. A specialty occupation is one that requires highly specialized knowledge and skills and a bachelor’s degree (or foreign equivalent) in a specific field of study. Typical specialty occupations in the H1B visa category include: computer systems analysts and programmers, physicians, dentists, professors, engineers and accountants.

Obtaining H1B visas for foreign nationals has become more difficult under the current administration’s “Buy America, Hire American” executive order signed in April of 2017. There are several other initiatives made to the H1B 2019 program to consider as part of your company’s H1B filing preparation.

The experienced immigration attorney at Columbus, Ohio-based Porter Law Office, LLC has in depth experience with securing H1B visas. If you need assistance with an H-1B visa, contact the business immigration lawyer at Porter Law Office, LLC in Columbus, Ohio today.

No Premium Processing

USCIS has announced an expanded suspension of premium processing. The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding certain cap-exempt filings). The suspension of premium processing is being extended through an estimated date of Feb. 19, 2019. USCIS has not indicated whether premium processing will be available for cap-subject petitions for this coming season. If recent history is any guide, then do not count on utilizing the premium processing service this upcoming cap season.

New LCA Requirements

In a stated effort to protect American workers, confront fraud, and increase transparency, the Office of Foreign Labor Certification (“OFLC”) revised the Labor Condition Application (“LCA”) information collection. As of November 19, 2018, the new version of the LCA must be used. The revisions include the ETA Form 9035/9035E, Labor Condition Application for Nonimmigrant Workers, for H1B, H1B1, and E-3 Nonimmigrants. The ETA Form 9035/9035E is used in the Department of Labor’s (“DOL”) employment-based temporary immigration programs to request permission to bring foreign workers to the United States as nonimmigrants to perform certain work in specialty occupations.

As of November 19, 2018, the LCA requires the full legal name of the end-client in an H-1B visa petition.

The most significant change on the LCA is the requirement to include the name of the end-client (or secondary entity). This does not pose a significant burden on the drafting of the LCA as the end-client name and information should be well known prior to filing the H1B vsia. The risk, some argue, is that the media or anti-immigration groups may target U.S. employers after discovering the identify of those end-client companies as LCA’s are available to the public online. Practically speaking, however, the risk may be more paranoia than anything.

Proposed Changes to Lottery Selection Process

On November 30, 2018, Department of Homeland Security (“DHS”) announced a proposed rule that would require H1B petitioners seeking to file H-1B cap-subject petitions to first electronically register with USCIS during a designated registration period. Under the same proposal, USCIS would also reverse the order it selects H-1B petitions under the H-1B cap and the advanced degree exemption. The proposed rule would likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for an H-1B cap number.

USCIS has not yet provided detailed instructions on how to comply with the new rules, or whether this proposal will be delayed until next year. Based on a seemingly rushed timeline for implementation, do not hold your breath for this change to materialize this year.

Prepare for H1B 2019 Cap Season

There are significant changes to consider when filing for a H1B 2019. But, there have been no Congressional amendments or revisions to the substantive laws implementing the program. As a result, old fashioned preparation can still help win the day. Below are some best practices and filing strategies to help you successfully navigate the H1B 2019 process.

1. Get Started Early – This is something you should be doing every year. To prepare for the H-1B cap season (which is a lottery system), you must start early. From a practical standpoint, starting early helps you obtain solid evidence, draft better position descriptions, and identify any potential issues that may arise in the H-1B process. Remember, haste makes waste. So start early to increase your chances of filing an successful petition.
2. Notify Immigration Counsel – This should be done in January, if not earlier. In fact, it is the first thing you should do when starting your H-1B application. Have your counsel set a timetable, evidentiary goals, and reminders to ensure your H-1B cap petitions are filed timely and accurately.
3. Evidence Required By February – In February, you should have all employer information ready to be reviewed by counsel. The evidence required will relate to the legitimacy of your company and that is it is currently engaged in an active business. USCIS will need this in order to allow your company to sponsor a foreign national for employment. You should also have all potential H-1B candidates identified and be ready to submit their information to counsel. Your attorney will review their H-1B eligibility and discuss with you any potential concerns with their case.
4. Draft Job Descriptions – Once you have identified good candidates, you should immediately start drafting solid job descriptions. Many H-1B visa denials have been issued because the employer drafts the job duties too generally. Copying duties from the Occupational Outlook Handbook (“OOH”) is bad as well. USCIS uses the job description to determine your worker’s eligibility. It is a major component of the case and needs started very early on in the process. Benchmark for completion should be end of February.
5. Labor Conditions Application (“LCA”) – In early-March, ensure that your counsel has sufficient information to draft the internal posting notices. This now includes the full legal name of the end-client. This work needs done before submitting the LCA. Further, this is when you will need to discuss the wage levels for your candidates. The Level I wage has created adjudication issues after the USCIS Guidance Memo on H1B Computer Related Positions found here. In addition, the LCA takes seven to 14 calendar days to be certified by the Department of Labor (“DOL”). If you file the LCA on March 30th, you will not be able to file the H-1B petition on the first day of the cap season.
6. Ready to File – By March 15, your immigration counsel should have all evidence, forms, support letters, public access files, needed to finalize each H-1B petition. This will ensure that your H-1B visa petitions are ready to be submitted timely to be received by USCIS on April 1. You should always check USCIS.gov regularly for updates to confirm the actual open date.

Contact the H-1B visa lawyer in Columbus, Ohio to discuss your H-1B visa case.

The business immigration attorney at Columbus, Ohio-based Porter Law Office, LLC has in depth experience with securing immigration benefits including H-1B visas. If you need assistance with an H-1B visa, or have H1b visa lottery questions, contact the H-1B visa lawyer at Porter Law Office, LLC in Columbus, Ohio today.

Immigration Lawyer in Columbus, Ohio

H-1B Visa Representation

Porter Law Office, LLC has experience in securing H-1B visas for a wide variety of organization and individuals. The H-1B visa process is complex. There are strict federal labor laws and immigration rules and regulations. Columbus, Ohio immigration lawyer Matthew R. Porter, Esq. assists employers in complying with the H-1B visa regulations. We can help your organization with H-1B visa petition filings and compliance issues. If your organization is considering sponsoring a foreign national on an H-1B visa, contact Columbus, Ohio immigration lawyer Matthew R. Porter to discuss your H-1B visa options.