As a follow-up to the April 7, 2017 announcement that the H-1B cap had been reached, on Monday, April 17, USCIS revealed that it has now completed the random selection of the 85,000 petitions for the quota and that in total, the agency received 199,000 H-1B cap-subject submissions. This number is down considerably from last year’s 236,000. This lower rate of filing may signal a trend that employers are seeking alternative strategies due to the uncertainty of the H-1B cap selection process. This decrease in the total number of submissions does increase the chances of selection out of the quota compared to recent years. USCIS has begun mailing Receipt Notices for selected petitions, but adjudication has not yet started. Likewise, the return of unselected petitions and their filing fees has not begun.
One day later, on April 18, President Trump signed a new executive order also dealing with the H-1B program. The President’s “Buy American, Hire American” order does not change existing law. The order directs appropriate government agencies to review current law and recommend changes to prioritize eligibility based on higher skills and pay. These criteria are not part of the current H-1B legal requirements, and therefore a congressional change in the statute will be needed before any such changes can be implemented at the agency level. The order also directs federal agencies to review all visa programs and take action to combat fraud and abuse to protect U.S. workers. Sponsoring employers currently pay a $500 government fee for each initial H-1B and L-1 filing to help combat fraud and abuse in these programs. The government already uses these funds to conduct random site visits of employers to ensure compliance with the H-1B and L-1 programs. This new order is a sign that these are likely to increase.
Stay tuned for additional updates regarding the FY18 H-1B cap lottery selection.
Please contact an attorney with Mintz Levin’s Immigration Practice to discuss any questions you may have about H-1B sponsorship or alternatives to the H-1B visa.