On April 7 2017 US Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for the fiscal year 2018. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the 'master's cap'.(1)

US businesses use the H-1B programme to employ foreign workers in occupations that require at least a bachelor's degree or equivalent.

Process for 2018

On April 17 2017 USCIS announced that it had received over 199,000 H-1B petitions during the filing period, which began on April 3 2017, including petitions filed for the advanced degree exemption. The number of petitions filed is down from the record-breaking filings for fiscal year 2016, in which USCIS received 236,000 petitions. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. The agency will conduct the selection process for the advanced degree exemption first. All unselected advanced degree petitions will then become part of the random selection process for the 65,000 limit.

Premium processing

USCIS announced that from April 3 2017 it will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to six months.(2) At present, under regular processing, it can take six months or longer for an application to be reviewed. The premium processing service provides expedited processing for certain employment-based petitions and applications. Specifically, USCIS guarantees 15 calendar-day processing for petitioners or applicants who choose to use this service or it will refund the fee. While H-1B premium processing is suspended, petitioners will be unable to file a Form I-907 Request for Premium Processing Service for a Form I-129 Petition for a Non-immigrant Worker, which requests the H-1B non-immigrant classification. USCIS will notify the public before resuming premium processing for H-1B petitions.

The temporary suspension applies to all H-1B petitions filed on or after April 3 2017. Since cap-subject H-1B petitions filed in 2017 for fiscal year 2018 could not be filed before April 3 2017, this suspension will apply to all petitions filed for the fiscal year 2018 H-1B regular cap and advanced degree master's cap exemption.

The temporary suspension of premium processing does not apply to other eligible non-immigrant classifications filed on a Form I-129.

Cap-exempt petitions

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of existing H-1B workers who have previously counted towards the cap will also not count towards the congressionally mandated fiscal year 2018 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • extend the amount of time that H-1B workers may remain in the United States;
  • change the terms of employment for H-1B workers;
  • allow H-1B workers to change employers; and
  • allow H-1B workers to work concurrently in a second H-1B position.

Impact of Trump administration on cap petitions

In 2016 and 2017 USCIS received record-breaking H-1B cap petitions: 233,000 for fiscal year 2016 and 236,000 for fiscal year 2017. The fear of anticipated changes under the Trump administration may explain the decrease of 37,000 petitions. President Trump has made immigration enforcement and reform one of his key promises, including a significant overhaul of the H-1B guest-worker visa programme.(3) Memoranda from several government agencies, including the Department of Labour, the Department of Homeland Security and the Department of Justice, have addressed how they will increase scrutiny of the H-1B programme. Trump also plans to sign an executive order requiring federal agencies to examine the H-1B visa.

Further, Congress has several pieces of pending legislation which will change different aspects of the H-1B programme. For example, the H-1B and L-1 Visa Reform Act 2017, a bill introduced by Senators Grassley and Durbin, would reform the programme by instructing officials to grant visas on merit, rather than through the existing lottery system.(4) Specifically, the bill would require USCIS to prioritise H-1Bs to ensure that the best and brightest students in the United States receive preference for an H-1B visa. The proposed system would also give preference to:

  • advanced degree holders;
  • those being paid high wages; and
  • those with valuable skills.

Along with the Grassley-Durbin bill, others have been put forward in the past that have proposed harsh provisions to penalise heavy users of the H-1B and L-1 programmes.

For further information on this topic please contact Melissa B Winkler at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (melissa@employmentimmigration.com). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

Endnotes

(1) www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2017.

(2) www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions.

(3) www.reuters.com/article/us-usa-trump-visa-idUSKBN17K02U.

(4) www.congress.gov/bill/115th-congress/senate-bill/180.