January 23, 2018Client Alert

Time to Start Preparing for April 1st H-1B “Cap” Filings

On April 1st each year, United States Citizenship & Immigration Services (USCIS) begins accepting petitions from employers seeking to employ new H-1B workers during the next fiscal year, which begins on October 1. The number of available new H-1Bs is capped at 65,000 per fiscal year, with an additional 20,000 slots available to foreign nationals holding advanced degrees (master’s degrees or higher) from U.S. institutions. This fixed number of H-1Bs available per fiscal year is known as the “H-1B cap.”

If, during the first five business days of April, USCIS receives more H-1B petitions than it is permitted to adjudicate, USCIS will randomly select H-1B petitions for adjudication among all of the petitions received during the five-day filing window. For the last several years, USCIS received significantly more petitions than it was permitted to adjudicate during the brief filing window. We anticipate that the number of petitions filed during this year’s five-day window will again exceed the H-1B cap. To ensure that H-1B petitions are included within the random selection process, we recommend that employers make hiring decisions for foreign national workers and job applicants as soon as possible, and prepare to file petitions for new H-1B employment, so that the petitions are received by USCIS on or about April 1, 2018.

The Department of Homeland Security plans to propose new regulations for Optional Practical Training (OPT) and H-4 (spouses of H-1B workers) employment authorization programs in 2018. Because of uncertainty related to these categories, we strongly recommend that employers file H-1B petitions on behalf of individuals currently working pursuant to OPT authorization or H-4 EAD authorization. Likewise, consider filing H-1B petitions for employees in TN temporary worker status, as NAFTA provisions are also under review by the Trump Administration.

Note that the H-1B cap does not apply to employees of (i) colleges and universities; (ii) nonprofit organizations related to or affiliated with a nonprofit college or university; or (iii) nonprofit or governmental research organizations. Also note that, in most cases, individuals who currently have H-1B status, whether with you or another employer, need not worry about the annual H-1B cap. However, other individuals, including those who are currently in F-1 (student) or J-1 (exchange visitor) status may need new H-1B petitions filed on their behalf in order to transition to H-1B employment and avoid gaps in employment authorization.

In the event of a U.S. government shutdown, USCIS will continue to process H-1B petitions and other immigration petitions that require filing fees.

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