Plan Now for H-1B Cap Filings

Monday, April 3rd, 2017 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2018 H-1B cap.  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.

Background:

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

• “Standard” Cap Petitions.  These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 1st as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)
• U.S. Advanced Degree Petitions.  These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Potential beneficiaries who should be considered for an H-1B cap petition filing include, but are not limited to: potential new hires from overseas; F-1 students completing a qualifying course of study or working pursuant to Optional Practical Training; some L-1 visa holders; certain J-1 exchange visitors; and TN and other nonimmigrant status holders who wish to change to H-1B status in the coming year.

Last year, the available visa numbers were exhausted very quickly leading USCIS to announce on April 7th – only 5 business days after the filing period had opened — that the annual H-1B limit had been reached. Having received more than 236,000 petitions to surpass the limit of 85,000, H-1B cap petitions were subject to a lottery for the fourth consecutive year.

With employers filing H-1B cap petitions for those employees who missed out in the last few years, as well as new petitions being filed on behalf of recent graduates and new employees, we anticipate that the H-1B quota will again be quickly reached this year.  Accordingly, 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 3rd, 2017, note that employment pursuant to any approved FY 2018 H-1B cap petition may not commence prior to October 1st, 2017.

A Reminder – Who Is Not Subject to the Cap:

As a reminder, certain H-1B petitions are not counted against the FY 2018 annual cap. These include the following:

• Individuals in H-1B Status Previously Counted Against the Cap.  In most cases, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
• Petitions for Exempt Organizations.  H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

Gibney will be closely monitoring any proposed changes to policy or procedure under the new Trump administration, and we will provide updates as needed.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.