U.S. Citizenship and Immigration Services (USCIS) will accept new H-1B petitions subject to the annual quota for fiscal year 2018 (FY2018) starting in April of 2017 (April 1, 2017 falls on a Saturday, so USCIS will accept cap-subject petitions for the year starting on the following business day, Monday, April 3, 2017). Employers may want to begin identifying current and future employees who may require new H-1B visas to work in the United States. Individuals currently holding F-1 student or J-1 trainee visas, individuals seeking to change to H-1B status from another visa status (such as L-1, TN, O-1, or E-3), and individuals outside of the United States commonly require a cap-subject H-1B petition to be filed on their behalf.
Overview of the H-1B Visa Program
The H-1B visa program permits U.S. companies to employ foreign nationals in specialty occupations. A specialty occupation is a position that requires the theoretical or practical application of a body of highly specialized knowledge, such as that of an engineer, scientist, or computer programmer. The specialty occupation must require a bachelor’s degree or higher (or its foreign equivalent) in a specific field.
The number of new H-1B visas available on an annual basis is subject to annual limitations for each fiscal year. Currently, the annual limit is 65,000 visa numbers per year with an additional 20,000 available to H-1B applicants that possess an advanced degree from a U.S. academic institution. Of the 65,000 available H-1B visas, 6,800 are reserved for citizens of Chile and Singapore. Due to the cap, employers may want to plan far in advance and file as early as possible to ensure they have the best chance to secure H-1B status for the next fiscal year.
When USCIS receives more cap-subject H-1B petitions than the annual fiscal year limitation, USCIS conducts a computer-generated random lottery selection process. The first lottery is limited to individuals who possess an advanced degree from a U.S. academic institution. If a qualifying advanced degree holder is not selected in this first lottery, his or her petition will be included in the second lottery for the regular H-1B cap.
Cap-subject petitions that are not selected in the lottery will be returned with the filing fees. Once the number of available H-1B visas has been fulfilled, USCIS will not accept or approve any new cap-subject H-1B petitions until the filing period for the next fiscal year opens.
Some H-1B petitions are exempt from the annual fiscal year limitation. The following H-1B petitions are cap-exempt: (1) H-1B petitions that are filed to extend or amend H-1B employment for foreign workers who are already in H-1B status, and (2) petitions filed on behalf of new workers to be employed in H-1B status by institutions of higher education or related nonprofit entities, nonprofit research organizations, or government research organizations.
How to Prepare for the FY2018 H-1B Cap
The annual fiscal year cap for H-1B visas is typically reached within the first week of filing. As the number of cap-subject H-1B petitions that will be filed by employers for FY2018 is uncertain, employers may want to mail all cap-subject H-1B petitions on March 31, 2017, for delivery to USCIS on April 3, 2017, which is the first day of the filing period. Employers can immediately begin identifying individuals for whom H-1B sponsorship will be needed so they can allow sufficient time for H-1B petition preparation.
In preparing FY2018 H-1B petitions, employers may want to keep in mind the time required to file and receive certification of a Labor Condition Application (LCA). The LCA is a prerequisite to a properly filed H-1B petition. As part of the LCA, employers must attest that they will pay the H-1B worker the higher of the prevailing wage or actual wage for that position in the geographic area of intended employment. The LCA is then submitted to the U.S. Department of Labor, which can take up to 10 days to certify the application. Employers should keep this processing time in mind to ensure timely approval of the LCA. Such timely approval will enable an employer to mail the H-1B petition on March 31, 2017, for delivery to USCIS on April 3, 2017.
Employers can take action now to initiate cap-subject H-1B petitions.
Compliments of Ogletree Deakins – a member of the EACCNY