Immigration Alert: Plan Now for H-1B Cap Filings

Monday, April 2, 2018 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the annual cap for the Fiscal Year (FY) 2019, which begins October 1, 2018. Preparation for H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

H-1B Categories

H-1B cap cases generally fall within two categories:

Who Should Be Considered for an H-1B Cap Petition?

Potential beneficiaries include, but are not limited to:

Why it’s Best to Start Planning Now
Last year, the available visa numbers were exhausted very quickly, and the annual H-1B limit was reached in the first 5 business days of the filing period. Having received more than 199,000 petitions to surpass the limit of 85,000, H-1B cap petitions were subject to a lottery for the fourth consecutive year. We anticipate that the H-1B quota will again be quickly reached this year. It is increasingly important to file cap-subject H-1B petitions at the earliest possible date. Although H-1B cap petitions may be filed as early as April 2, 2018, note that employment pursuant to any approved FY 2019 H-1B cap petition may not commence prior to October 1, 2018.

A Reminder – Who Is Not Subject to the Cap:

Certain H-1B petitions are not counted against the FY 2019 annual cap, including:

What is Different This Year?
Although no rule changes have been published to date, the Administration is considering changes to the H-1B visa program and cap selection process, such as online registration, that could impact filings. Over the past year, clients have seen increased scrutiny of all H-1B petitions with demands for additional evidence on various issues, in particular with respect to qualifying the position as a specialty occupation. In response, employers are being required to provide additional documentation to justify and support H-1B positions and the degree requirements.

Gibney will be closely monitoring any proposed changes to policy or procedure and we will provide updates as needed.

If you have any questions about this alert, please contact your Gibney representative or email