Retail Did You Know?

Dear Retail Clients and Friends,

This year’s H-1B filing season has come to a close. Between April 3 and April 17, US Citizenship and Immigration Services (USCIS) received 199,000 H-1B petitions, far exceeding the congressionally mandated cap. This edition of Morgan Lewis Retail Did You Know? takes a brief look at the significance of the filing cutoff.

USCIS announced on April 7 that it had reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018 (FY 2018), and had also received a sufficient number of H-1B petitions to meet the 20,000 visa cap for the US advanced degree exemption, also known as the master’s cap.

On April 17, 2017, USCIS further announced that during the filing period, which began April 3, the total number of FY 2018 petitions it had received was 199,000, a significant reduction from previous years. The agency also announced that it had completed the two lotteries held to select which H-1 petitions will be processed.

This year, as in past years, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general category cap and the 20,000 master’s cap. USCIS will reject and return all unselected petitions with their filing fees, unless a petition is found to be a duplicate.

The most startling aspect of the USCIS announcement is the relatively low number of H-1B petitions received this year—it is the smallest number of petitions since the FY 2015 lottery, when 172,500 cap-subject petitions were filed. The lower overall number of petitions received means that each H-1B petition will have a better chance of acceptance than in years past (236,000 petitions were received for FY 2017 and 233,000 petitions were received for FY 2016).

As announced on March 3, 2017, USCIS has temporarily suspended premium processing of all H-1B petitions, including those falling under the FY 2018 count. This suspension may last up to six months. We understand that USCIS has begun issuing receipts for those H-1B petitions selected in the lotteries, and that some petitioners have received receipts via regular mail. We anticipate receiving receipts for FY 2018 petitions over the course of the next few weeks.

There is a common misperception that the H-1B visa is used only by information technology companies. In fact, employers in the retail industry frequently use the H-1B classification to hire foreign national talent in a variety of specialty occupations including positions in design, pharmacy, optics, logistics, nutrition, business and financial analysis, e-commerce web development, back-office IT, and other fields for which a specific bachelor’s degree is typically a minimum requirement for entry into the profession.