USCIS Will Begin Accepting H-1B Cap Petitions on April 3, 2017

Employers are reminded to begin preparing now for H-1B cap season to ensure that their petitions are ready to be filed before the first day of filing, which is April 3, 2017. Approved cap-subject H-1B petitions will have an employment start date of October 1, 2017. In preparation for the opening of the FY 2018 H-1B filing period, employers are strongly encouraged to begin identifying current and future employees who will need H-1B visa status to be legally employed in the United States. Individuals currently employed as F-1 students or J-1 trainees, 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 be filed on their behalf.

It remains unclear what the Trump administration may do to potentially limit the H-1B visa program, and no concrete changes have been proposed thus far that would affect the coming H-1B cap filing period. While employers should anticipate the possibility of some legal changes before April 3rd that could affect the H-1B visa program, they should move forward with their H-1B cap cases in the meantime.In past years the number of H-1B petitions filed in early April has far exceeded the number of available visas and U.S. Citizenship and Immigration Services (USCIS) has conducted a random lottery to determine which cases will be processed. Only petitions received by USCIS during the first five business days of April are included in this lottery, so it is imperative that new H-1B petitions be initiated and filed in a timely fashion. Please read the following discussion of the H-1B cap process and consider whether you or your company need to file an H-1B petition on April 3, 2017.

Who Needs to File an H-1B Petition on April 3rd?

Only “new” H-1B petitions are subject to the numerical cap and must be filed on April 3rd. If a person was previously granted status as an H-1B nonimmigrant and has not spent a full six years in the United States in H-1B status, then an H-1B petition filed on behalf of that person is not subject to the cap. This includes H-1B extensions, changes of employer petitions, and amendments. It also includes H-1B petitions filed on behalf of people who are outside of the United States but who have previously been approved for H-1B status or issued an H-1B visa.

How Does the USCIS Process Work?

USCIS will begin accepting H-1B petitions subject to the FY 2018 cap on April 3, 2016. The H-1B cap for FY 2018 is 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with a U.S. Master’s degree or higher are exempt from the fiscal year cap of 65,000. Last year, only about 33% of filed cases were accepted for processing. We expect that there will be a similar demand for new H-1B cap petitions this year.

If USCIS receives more H-1B petitions than it can accept during the first five business days (April 3 to April 7), which is highly likely again this year, USCIS will use a computer-generated random lottery system to select the petitions that it will process. Presuming that the random lottery is again required for FY 2018, USCIS will reject petitions that are not selected in the lottery, as well as petitions received after April 7, 2017. USCIS will first conduct a random lottery process for the petitions filed on behalf of individuals with a U.S. master’s degree or higher (advanced degree exemption), and then any advanced degree petitions not selected as part of the 20,000 exception will be considered among the random lottery process for the 65,000 limit.

H-1B petitions that are accepted in the lottery will receive a “receipt notice” by mail from USCIS. H-1B petitions that are rejected will be returned to the employer (or the immigration law firm), along with uncashed filing fee checks. It may take until the end of May 2017/early June 2017 to know for certain if a particular H-1B petition has been selected in the random lottery or has been rejected.

H-1B cap petitions can also be filed with a Premium Processing request (which guarantees review of the petition by USCIS within 15 calendar days and issuance of an approval, denial, or Request for Evidence), but the 15 day clock for adjudication of such Premium Processing H-1B petitions will likely begin in mid-April, based on prior years’ experience. USCIS should issue receipt notices for all H-1B cap petitions filed with Premium Processing requested by the end of April 2017. Filing an H-1B petition requesting premium processing will not increase the chances of obtaining an H-1B under the cap. However, as noted above, one benefit of filing a cap subject H-1B petition with a request for premium processing is that a receipt notice will usually be issued faster than if filed under regular processing. Therefore, the petitioner and beneficiary should learn more quickly whether or not the petition has been chosen in the lottery.

What Can Employers Do Now to Prepare for the FY 2018 H-1B Cap?

Since the annual fiscal year limitation for H-1B visas is expected to be reached during the first week of the filing period again in FY 2018, employers should immediately begin identifying individuals for whom H-1B sponsorship will be needed to allow sufficient time for H-1B petition preparation, including the time required to file and receive certification of the Labor Condition Application (LCA). The LCA, which is submitted online to the U.S. Department of Labor (DOL), is a prerequisite to a properly-filed H-1B petition. The DOL can take up to 10 days to certify an LCA. Employers must take this processing time into consideration to ensure timely approval of the LCA and the ability to mail the H-1B petition for delivery to USCIS between April 3 to April 7, 2017. Employers should contact the McCown & Evans attorney with whom you normally work as early as possible to initiate any cap-subject H-1B petitions.

How do Employers Identify Employees and Candidates Who Will Require FY 2018 H-1B Cap Sponsorship?

Carefully review a comprehensive list of employees that identifies each individual’s immigration status. The best source for this information is an immigration case status report for all foreign national employees. Look for the following situations:

F-1 Students Working with Optional Practical Training (OPT) or Curricular Practical Training (CPT)

If your company plans to retain these employees then they should be included in this year’s H-1B cap filings, even if they may have several years of OPT remaining.

J-1 Trainees or Interns

As with employees working with OPT or CPT, these employees will almost certainly require H-1B sponsorship.

L-1A or L-1B employees

L-1 visas are limited to five years duration for L-1B specialized knowledge workers and seven years total duration for L-1A managers or executives. If an L-1 employee reaches the maximum period of stay authorized under the L-1 visa, then he or she might be required to depart the United States for a full year to reset the five or seven year “clock.”

Consider changing these employees to H-1B status. While the H-1B visa is limited to six years duration, there are exceptions to that maximum period for those who are in the green card process. If a person is likely to reach the five or seven-year maximum in L-1 status before receiving a green card, then changing him or her to H-1B status is a good strategy for keeping the person work authorized in the United States.

TN employees

Consider whether Canadian or Mexican employees in TN status would be better off in H-1B status. Employers may want to change TN workers to H-1Bs for several reasons. First, TN status is available for only a few specific occupations. Employers wishing to promote or change the employee’s position to one that is not included in the TN occupation list would not have the same restriction if the employee were in H-1B status. Second, employers wishing to sponsor employees for green cards should consider moving the TN employees to H-1B status because there can be restrictions (including international travel restrictions) in changing a person from TN status to green card status. These restrictions do not apply to H-1B employees. Finally, there is the possibility that the new Trump administration could attempt to renegotiate certain free trade agreements, which could adversely affect the TN and other visas created under free-trade agreements.

E-3 (Australia) or H-1B1 (Chile or Singapore) employees

As with employees in TN status, there can be restrictions in changing an employee’s status from either E-3 or H-1B1 status to a green card. Consider applying for H-1Bs for these employees to pave the way for a smoother green card process. Also, as noted above, there is the possibility that the new Trump administration could attempt to renegotiate certain free trade agreements, which could adversely affect visas created under free-trade agreements such as the E-3 or H-1B1 visa.

Employees with dependent EADs (L-2, H-4, E-2 or J-2 spouses)

If an employee has employment as the spouse of an L-1, H-1B, E-2, E-3 or J-1 visa holder then his or her work authorization is dependent on the employment status of the employee’s spouse and on the continuity of the employee’s relationship with his or her spouse. Changing these employees to H-1B status will eliminate the risk that the employee loses work authorization if his or her spouse’s employment ends or if the couple divorces.

New H-1B candidates living abroad

Identifying these candidates can be tricky. Cast a wide net throughout your organization by alerting hiring managers, recruiters and other interested parties that they should identify potential H-1B candidates as soon as possible. Share this update with them to provide context.

 

When Should Employers Initiate the H-1B Cap Filing Process?

While cap-subject H-1Bs cannot be filed with the USCIS until April 3rd, initiating the process early provides important advantages. First, starting early allows time to identify all of the documents needed from the company and the employee. This is particularly important in cases where the candidate will need a credentials evaluation. Advance planning also allows more time to discuss the case, delve deeply into tricky issues and, where appropriate, develop alternate immigration strategies. Finally, preparing the case well in advance helps avoid last-minute stress.

Please contact your attorney at McCown & Evans with any questions!