U.S. employers who sponsor foreign workers for temporary H-1B work visas should start preparing now for the upcoming H-1B cap filing season commencing this year on Monday, April 2, 2018. Employers should start identifying those first-time H-1B workers for which petitions will be filed during the first five business days in April. International students holding F-1 visas are the most common beneficiaries for these "quota subject" H-1B petitions.
Demand for H-1B numbers will likely increase over last year. Strong economic growth, lower corporate tax rates and reduced regulatory burdens on businesses will drive demand for new skilled workers in short supply. In addition, current employees holding H-4 EADs or TN temporary work authorization, two categories that may face significant changes this upcoming year under President Trump's "Buy American and Hire American" Executive Order, may request that they be converted to H-1B status. This confluence of factors may result in a "perfect storm" for this upcoming H-1B cap season to be the highest on record.
As background, the H-1B is the most popular temporary work visa category for professional foreign workers. To sponsor a foreign worker, a U.S. employer must first obtain an approved H-1B petition from the U.S. Citizenship and Immigration Services (USCIS). The supply of available new H-1Bs to employers looking to fill their staffing needs is not based on market demand; rather, the law places a predefined numerical limit on new H-1B work visas issued each government fiscal year (which runs from October 1 to September 30). Demand for new H-1Bs has dramatically exceeded the quota in the past number of years.
USCIS cannot approve more than 85,000 new H-1B petitions each fiscal year. This total includes 65,000 general H-1Bs and an additional 20,000 H-1Bs for holders of a master’s or higher degree issued by a U.S. college or university. The yearly cap applies only to first-time H-1B workers who have not held H-1B status in the past. The cap does not apply to existing H-1B workers who are extending their current H-1B status or who are changing H-1B employers.
Because employers are permitted to file H-1B petitions up to six months in advance of the worker’s start date, the first business day in April becomes the earliest date on which new H-1Bs can be filed against the new fiscal year commencing on October 1. USCIS is required to accept H-1B cap filings for the first five business days in April. If the number of H-1Bs received during this acceptance period is larger than the quota, the USCIS is mandated to perform a random selection process (lottery) to determine which H-1B petitions will be selected under the quota.
This year, USCIS will accept H-1B cap filings commencing Monday, April 2, 2018 through Friday, April 6, 2018. If selected and approved, the approval will be effective for H-1B employment on or after October 1, 2018. Employers must plan carefully to ensure that they have the highest chance of success to secure one of the new FY19 H-1Bs. Last year, the USCIS received almost 200,000 H-1B petitions during the April filing window. We strongly recommend employers to identify those individuals who may need H-1B sponsorship and to start preparing the H-1B petitions as early as possible.
Foster Garvey’s International practice group comprises a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. A number of attorneys have been actively practicing in the international arena since the early 1970s.