The filing window for Cap-Subject H-1B petitions for Fiscal Year 2019 will open on April 1, 2018.  Petitions filed later than the first week of the filing period are unlikely to be considered, so employers with a need for H-1B workers should contact their attorney as soon as possible to begin preparing these petitions and composing a Plan B for employees not selected in the expected lottery.  We also expect additional preparation time will be necessary due to heightened scrutiny for the H-1B program brought on by the 2017 “Buy American, Hire American” executive order. Early assessment of options and strategy will be essential.

Over the last five years, the 85,000 petition Cap (65,000 for regular petitions and 20,000 for U.S. Master’s degree petitions) has been reached within the first week of the filing period.  For FY 2018, approximately 199,000 H-1B petitions were filed during the first week. USCIS used a computer-generated random process to select the 85,000 petitions eligible for adjudication, leaving only a 36% chance of selection.  Petitions not selected in the Cap lottery are returned with filing fees, and unsuccessful applicants must wait until the next April to apply again or find an alternative route to employment authorization.

The 2019 Fiscal Year runs from October 1, 2018 to September 30, 2019.  Employers will be able to submit new H-1B petitions to USCIS beginning April 1, 2018 (six months before the start of the 2019 Fiscal Year).  Approved beneficiaries can begin their H-1B employment on October 1, 2018.  If, as we expect, the Cap is reached during the first week of the filing period, any petitions received after the first week of the filing period will not be considered, and any petitions not selected in the lottery will be returned.

Early discussions with your immigration attorney can identify alternatives to the H-1B route, potential roadblocks in the preparation of an H-1B petition, and contingency plans in the event of an unsuccessful lottery.

Assessing Your Cap-Subject H-1B Needs

H-1B visas are available for specialty occupations requiring a bachelor’s degree or its equivalent.  For current or transferring employees, employers should consider the following to determine potential FY 2019 H-1B applicants:

• Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need to change status to an H-1B;
• Determine whether any TN employees (NAFTA professionals) or H-1B1 employees (citizens of Chile or Singapore) might want to an H-1B to be eligible to apply for adjustment of status to permanent residence;
• Review those employees with expiring O visas (renewable in only one year increments rather than the three year increments available to H-1B visa holders);
• Check whether your transferring employees who currently hold H-1B status have already been counted against the Cap (note that any employee transferring over from an employer exempt from the H-1B Cap may now be subject to the Cap);
• Consider whether you employ someone in L-1B status who might need to switch to an H-1B to gain an additional year of status.

Cap-Exempt Circumstances

Employers or beneficiaries in the following categories may be exempt from the 85,000 numerical limit:

• Higher education institutions and related non-profits;
• Non-profit or government research organizations;
• Beneficiaries who have held H-1B status in the last six years, but have not exhausted their entire six-year period of stay.

Please contact us if you’d like to discuss your H-1B hiring needs. The earlier we hear from you, the more time we have to evaluate, plan, and develop strategies for success.