As a reminder to all U.S. employers, H-1B season is around the corner! United States Citizenship & Immigration Services (“USCIS”) will start accepting new H-1B petitions for fiscal year 2018 on Saturday, April 1, 2017. As such, employers should start immediately identifying current and future employees who will require sponsorship for new H-1B petitions.
By way of background, the USCIS issues H-1B visas to foreign workers serving in“specialty occupations at a professional level.” A specialty occupation requires theoretical and practical application of a body of highly specialized knowledge, to be performed by a worker with at least the equivalent of bachelor’s degree in the field. Both the position to be filled and the foreign worker’s qualifications must meet the criteria for a specialty occupation.
The statute provides for an annual quota of 65,000 new H-1B visas that can be issued in any given fiscal year, which runs from October 1 to September 30. In addition, there is a separate quota of 20,000 H-1B visas per fiscal year for graduates of U.S. advanced degree programs, for a total of 85,000 H-1B visas. Because the annual quota was met within days of the first day of filing (April 1, six months before the start of the fiscal year) on a consistent basis the last few years, all petitions are placed into a random computer lottery system. Only those petitions selected in the lottery will be deemed receipted (with a receipt notice being issued by USCIS) and proceed to adjudication.
Given the incremental improvements in the economy, business immigration practitioners expect that this year’s H-1B demand will be the equivalent, if not even greater that last year, with possibly more than half of all H-1B petitions filed by employers rejected due to the haphazard lottery system. Affected foreign nationals whose petitions are not chosen will be unable to obtain an H-1B visa until the next fiscal year and may be required to forgo employment with employers and possibly leave the United States. In such instances, employers will need to look at alternative visas for affected employees.
Thus, in this climate, our firm strongly urges employers to file H-1B cap-subject petitions with USCIS on the earliest possible date in fiscal year 2018. Ideally, this would mean mailing the petition to USCIS on March 31, 2017 for delivery to USCIS on Saturday, April 1, 2017, the very first day of filing. In order to do this, employers with H-1B cap subject petitions should initiate cases immediately.
Obtaining an H-1B visa for an employee requires significant advance planning. It can take sometimes two to four weeks to gather all of the necessary information and supporting documentation, file the Labor Condition Application, and prepare the petition for filing with USCIS. With H-1B season almost upon us, employers should not hesitate or wait to contact immigration counsel to begin working on cap subject petitions. Our firm is available to assist with your H-1B needs.