Time to Plan for Fiscal Year 2019 H-1B Cap Season

Yes, it’s that time of the year again for cap-subject employers.

H-1B petitions subject to the Fiscal Year 2019 cap (FY 2019) can be filed with the U.S. Citizenship and Immigration Services (USCIS) on Monday, April 2, 2018.

Overview of H-1B Program

The H-1B allows U.S. companies to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.  H-1B specialty occupations may include fields such as science, engineering and information technology.

Employers can file H-1B applications 6 months in advance of the start date of employment.  Cap-subject employers are limited to filing on or after April 1 for an October 1 start date.

Note:  There are no cap issues with cap-exempt employers (Institutions of higher education; nonprofits related to or affiliated with institutions of higher education; nonprofit research organization or governmental research organization; employers applying for Conrad State Waivers for physicians in J-1 status).  They can file an H-1B any time of the year.

H-1B Cap-Subject Petitions

Each year, there are 65,000 regular H-1B visas available (of which 6,800 are reserved for citizens of Chile and Singapore) plus an additional 20,000 for those who have earned a master’s degree or higher from an accredited U.S. institution. Beneficiaries of successful FY 2019 H-1B petitions will be eligible to begin work in H-1B status on Oct. 1, 2018.

About the H-1B Lottery

The USCIS receives more petitions than there are cap numbers available within the first week of filing. Generally it will cease accepting petitions at the end of five business days. USCIS will then use a computer-generated random selection process, or lottery, to select petitions for processing.  The first lottery is limited to individuals who possess advanced degrees from U.S. academic institutions. If a qualifying advanced degree holder is not selected in this first lottery, his or her petition will be rolled into the second lottery for the regular H-1B cap.

For FY 2018, USCIS received 199,000 cap petitions within the first five business days of April – less than the 236,000 filed for FY 2017 during the same 5-day period.  The political climate could cause even less to be filed this year.

Any cap-subject H-1B petitions that are not selected in the lottery are returned by USCIS with filing fees.

Premium Processing

Last year Immigration temporarily suspended the use of Premium Processing for H-1B petitions effective April 3.  This effected cap-subject and cap-exempt petitions.  There is no information as yet on whether it will happen again but it’s likely for cap-exempt.

Plan Now

Cap-subject employers and potential H-1B employees should start the process as soon as possible to have the petitions ready to send out by March 30.  Documents must be collected and reviewed to determine eligibility and a certified Labor Condition Application (LCA) needs to be filed with the U.S. Dept. of Labor. Advanced planning will ensure H-1B cap petitions are timely received by USCIS on April 2.  Contact the Immigration Team at Orr & Reno to begin the process.

About the Author:  Robin L.H. Vermette

Print this entry