H-1B Petitions for Foreign Employees: Changes to Policy, Not Process

Published: 02/09/2018

Source: http://bit.ly/2C9LnRF

With widespread media attention on the Deferred Action for Childhood Arrivals (DACA) policy expiration and immigration policy negotiations, it is important not to overlook the start of the H-1B “cap” case season. With no time to waste, employers must determine their need for H-1B cap filings and immediately start preparation, well in advance of the five-day filing window starting April 2, 2018. The H-1B program changes seen in the past year, while significant, have been limited to policy and practice changes. At this time, the numerous proposals for changes to law and regulation are still only proposals. The H-1B cap filing timing and procedures have not changed and, despite the challenges discussed below, the cap season is still a high priority and necessity for many US employers.

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Background

The H-1B visa classification is appropriate for foreign workers who will fill positions that require at least a bachelor's degree or equivalent. There is an annual limit of 65,000 first-time H-1B filings, and an additional 20,000 first-time H-1B filings can be accepted for foreign nationals who have completed US master's or higher-level degrees. These numerical limitations are referred to as the H-1B cap. It is a virtual certainty, based on historical trends, that both the regular and advanced degree H-1B caps will be exceeded within the minimum five day filing period. This minimum filing period is the first five business days of April, meaning that for Fiscal Year 2019 (FY19), this filing period is April 2-6, 2018. In past years, when the number of filings received during this five-day period has exceeded the cap limits, US Citizenship and Immigration Services (USCIS) has conducted a random lottery to determine which cases to process. If this occurs, all cap-subject H-1B petitions received from April 2-6 will be entered into a lottery to select cases for adjudication. Cases not selected are rejected. Since these filings are for FY19, accepted petitions must request a validity date of October 1, 2018, the first day of the government’s fiscal year. Thus, H-1B employment cannot begin until October. Any prior US employment will require an alternative employment authorized status.

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