On April 7, only five business days into the filing season, U.S. Citizenship and Immigration Services (USCIS) announced that it had already received a sufficient number of H-1B petitions to reach the statutory caps for both the 65,000 regular cap and for the 20,000 cap for U.S. advanced degree holders for fiscal year (FY) 2018 (Oct. 1, 2017-Sept. 30, 2018). USCIS later announced that a total of 199,000 cap-subject petitions were received during the five-day time frame, which is nearly a 16 percent decrease from the 236,000 petitions USCIS received during last year’s filing period. Last week, USCIS conducted a computer-generated random selection process of the 199,000 H-1B filings. Petitions not randomly selected for H-1B processing will be rejected, and the filing fees will be returned. We have already begun to receive USCIS receipts for H-1B cases selected. We anticipate receiving more receipts over the next few weeks.

The fact that the H-1B numbers were used up so quickly demonstrates once again that Congress must act now to increase H-1B availability for American employers to bring highly educated and skilled professionals to work in the United States. In the meantime, if any of your H-1B petitions are not selected in the H-1B lottery, please contact us to see if some other visa category could accommodate your employment needs. Sometimes the TN (Treaty NAFTA), J-1 (exchange visitor), O-1 (extraordinary ability), or other classification can be an alternative.

Please keep in mind that if a person has already been counted toward the H-1B cap in the past six years, will be working for a university or affiliated nonprofit, or will be employed at a nonprofit or government research organization, a new H-1B number is not required, and we do not need to wait to file an H-1B petition.

President Trump’s H-1B Executive Order

President Trump has signed an executive order (EO) concerning the H-1B visa rules. Below are some of the key provisions:

Crackdown on Alleged Fraud and Abuse. The executive order will call on the Departments of Labor, Justice, Homeland Security and State to take steps designed to crack down on alleged H-1B program fraud and abuse. The EO will likely direct these agencies to analyze and report on ways they can reform their roles in the H-1B visa adjudication or issuance process in order to better protect United States workers.

Favor most skilled or highest-paid applicants. The current H-1B visa lottery system randomly selects 65,000 H-1Bs (plus an additional 20,000 reserved for U.S. master’s degree holders) without regard to the applicants’ specific skills or the wages to be paid to the foreign worker. The EO will ask agencies to develop ways to amend the H-1B selection process, such as increasing the number of H-1B numbers reserved for advanced degree holders or giving selection priority to the highest paid applicants.

Higher fees and adjusted wage scale. The EO will direct agencies to consider whether increasing the H-1B fees an employer must pay, or increasing the wage levels the employer must pay to the H-1B employee, would encourage employers to focus their H-1B hiring efforts on more highly skilled (and more highly compensated) foreign workers, thereby protecting lower-salaried U.S. workers from competition from foreign labor.

We will closely monitor the implementation of this new EO and provide additional updates as they become available.