Historically, H-1B visas have been the U.S. employment visa of choice due to their flexibility for professionals to work in “specialty occupations.” Lately, however, for those employers and prospective employees who are subject to the annual numerical “cap” on H-1Bs, the demand far outstrips the quota. Petitions must be filed in the first week of April in order to be included in a lottery from which a limited number will be selected for employment beginning the following October 1. In addition, the U.S. Citizenship and Immigration Services (“USCIS”) has increased its requests for additional evidence for selected petitions, which require special attention to the subject position’s qualification as an H-1B “specialty occupation.”
This alert is a reminder of the April 2, 2018 opening date for filing cap-subject H-1B visa petitions for Fiscal Year 2019. Petitions for the new fiscal year, which will be effective starting on or after October 1, 2018, will be accepted by the Government beginning April 2, 2018, and will likely continue through April 6. USCIS will continue to accept cap-subject H-1B petitions after April 6, but only if and until USCIS determines that a sufficient number has been received. Accepted petitions are then entered into random lotteries in which limited numbers of petitions are selected for processing.
Congress has placed a numerical cap on H-1B visas. For FY 2019, the limit again is 65,000 cap-subject H-1B visas, with an additional 20,000 H-1B visas available for individuals who have earned a Master’s degree or higher from an accredited U.S. educational institution. As in previous years, we expect USCIS to stop accepting petitions at the end of the fifth business day of April, whereupon those petitions accepted for the “advanced U.S. degree” quota will be entered into a random lottery, and those unselected will be entered into the general random lottery to vie for the remaining 65,000 H-1B visas with all other accepted petitions. We, therefore, advise employers to make H-1B sponsorship decisions and to prepare the H-1B petitions as early as possible and well before March 23, 2018, so that a complete petition can be prepared and filed for receipt by USCIS on April 2.
As soon as possible, we encourage employers to identify any employees or prospective employees who may require H-1B visa sponsorship. This may include prospective new employees, individuals who were not selected in previous H-1B lotteries, F-1 students, previous J-1 trainees, L-1 employees facing long green card delays, or other employees whose work authorization may be in jeopardy under changes in the immigration system proposed by the current Administration (e.g., persons working pursuant to H-4 employment authorization). Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions until April 1, 2019, for start dates of October 1, 2019.
We will work with you to file cap-subject H-1B petitions right up until April 5, and afterward, for as long as USCIS accepts them. Again, we strongly advise clients to finalize their H-1B petition decisions as soon as possible.
* * *
Please contact an attorney in Mintz Levin’s Immigration Practice Section for additional information regarding the H-1B visa program, or if you have a particular candidate in mind for H-1B status.