News/Pubs/Events

H-1B Cap Alert

On Monday, April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will open the H-1B cap season for federal fiscal year 2019. Organizations wishing to sponsor current or prospective employees for new H-1B visas subject to the annual quota for fiscal year 2019 may begin filing petitions on Monday, April 2, 2018, for a start date of October 1, 2018.

Background: The H-1B is a nonimmigrant visa that allows U.S. employers to temporarily employ foreign nationals in specialty occupations requiring theoretical or technical expertise. Unless determined to be exempt, new H-1B petitions are subject to an annual cap of 65,000 visas, with an additional 20,000 visas reserved for foreign nationals who have earned a U.S. master’s degree or a U.S. doctorate.

The annual cap applies to new H-1B visa petitions where the sponsored employee has not been previously counted against an annual cap and where the employer is not cap-exempt. Some employers, such as universities, colleges and some affiliated non-profits, are exempt from the cap.

Last year, USCIS received over 199,000 petitions during the first week of April 2017. If USCIS receives more than enough H-1B visa petitions to meet the regular and advanced-degree quotas during the first five business days of the filing season, as it did for the past several years, it will conduct a lottery to select cases for processing. First, the lottery focuses on selecting advanced-degree petitions to fill the cap exemption of 20,000. After completing the advanced-degree lottery, the remaining cases are put into a second lottery to select enough petitions to meet the regular quota of 65,000.

Prior to filing an H-1B visa petition, an employer must have a certified Labor Condition Application (LCA) from the Department of Labor (DOL). Federal regulations permit the DOL to take up to 10 business days to review the LCA. In addition, if your organization has not filed an LCA since 2008, it is likely your organization is not registered with the DOL. If this is the case, your organization will need to register through a process that takes an additional three business days.

Employers should identify current and prospective employees who will need H-1B sponsorship and work with your Bose McKinney & Evans attorney to secure organization documents, academic transcripts, degrees and other essential supporting evidence. Please allow sufficient time to prepare and file the H-1B petition as these documents often take time to assemble. Missing or incomplete documents may result in delays or even a denial from USCIS.

Last year, employers experienced unprecedented rates of requests for evidence for H-1B petitions. USCIS is expected to continue its close scrutiny of entry-level wages and positions, occupation degree prerequisites, and the educational background of current and prospective employees.

This alert is for informational purposes only. For more information, please contact the Bose McKinney & Evans attorney with whom you work or Michael Durham, at 317-684-5236 or mdurham@boselaw.com. You can also visit us online at www.boselaw.com.