Employers Should Begin Preparation for Opening of FY 2019 H-1B Cap

The beginning of the calendar year is the perfect time for employers to begin planning for the FY2019 H-1B cap filing season, which will begin on Monday, April 2, 2018.

Due to continued high demand, it is expected that the quota will be filled within the first 5 business days. The H-1B quotas for FY2019 are again expected to be capped at 65,000 petitions in addition to 20,000 petitions for those beneficiaries with advanced degrees from a U.S. college or university.

As in the past few years, H-1B cases received during the first week of filing (beginning April 1) are expected to be treated equally for cap purposes. If USCIS receives petitions in excess of the aforementioned quotas during this filing period, we expect they will implement a computerized lottery system to randomly select cases for processing as they have in prior years.  It is imperative that employers file petitions within this window—ideally on Friday, March 30, 2018 via overnight delivery—to maximize their chances of selection. In FY 2018, the USCIS received approximately 199,000 petitions during the same time frame.

As background, the H-1B classification is reserved for “specialty occupations.” Immigration regulations allow for an individual to remain in the United States in this status for a total of six years. To qualify for H-1B classification, the foreign worker must possess a bachelor’s degree in a field related to the position offered from a U.S. college/university, or an equivalent degree from a foreign school. In addition, the U.S. position offered must require a bachelor’s degree in the related field as the minimum educational requirement. Persons with degrees from foreign universities may qualify for H-1B classification if a certified evaluation agency determines that the degree is equivalent to a bachelor’s degree conferred by an accredited school in the United States. Individuals who have not completed a college degree may substitute three years of professional-level experience as the equivalent of one year of a baccalaureate degree. Additionally, a key prerequisite to the filing of the H-1B petition is obtaining an approved Labor Condition Application (LCA) from the U.S. Department of Labor. The LCA serves as an attestation that, among other things, the employer that it will remunerate the foreign worker at or above the ‘prevailing wage’ for the occupation in the location of intended employment.

Certain H-1B cases may not be subject to the lottery system, depending on whether the employer is a private or government research organization, a nonprofit institution of higher education, or a for-profit entity related to or affiliated with an institution of higher education. Such qualifying employers may be able to file an H-1B petition at any point during the year, and would not be subject to the lottery system described above. Moreover, a worker’s second application for an H-1B visa, as well as H-1B extension petitions, applications for an H-1B to transfer employers, and petitions to amend already-approved H-1B status are also exempt from the numerical cap limitations.

Employers should immediately identify individuals who would benefit from H-1B status anytime within the next 12 – 14 months. These can include any new hires, or current employees working on OPT (optional practical training following graduation), STEM OPT, or interns or trainees.

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About ABCs of Immigration Law
The global economy has become increasingly transactional and transcontinental. Since 9/11, there have been many amendments to immigration laws in the United States that have largely affected both individuals and businesses. Cozen O'Connor's immigration law blog, ABC's of Immigration Law, focuses on the interests and the challenges faced by those individuals and business impacted by immigration laws.
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