Executive Summary: We are releasing this Alert to remind employers of the fast-approaching April 1, 2018, opening date for filing H-1B work visa petitions on behalf of foreign employees who need sponsorship for work authorization in the U.S. this year. Since April 1, 2018, falls on a Sunday this year, the U.S. Citizenship and Immigration Services (USCIS) should start accepting H-1B petitions on the following business day, Monday, April 2, 2018.
The H-1B visa classification is designed for foreign workers who will fill professional occupations that require at least a bachelor's degree or equivalent. There is an annual limit of 65,000 H-1B petitions available each year, with an additional 20,000 reserved only for those holding U.S. master's degrees. In light of recent trends, we fully expect that the annual H-1B cap will be exhausted within the first week of April. All petitions received the first week will then be entered into a lottery to select which ones will be adjudicated and which will be rejected without being reviewed. Petitions that are accepted and approved will have a beginning validity date of October 1, 2018, or later.
Who Needs an H-1B Visa?
We urge employers to consider for H-1B sponsorship any current or future employees who are present in the U.S. under the following categories:
- F-1 student visas;
- J-1 exchange visitor visas;
- TN visas for Canadian and Mexicans professionals;
- L-1A/L-1B visas for managerial and specialized knowledge workers;
- E-3 visas for Australian professionals;
- L-2 or H-4 dependent visas;
- E-1 or E-2 treaty visas;
- Temporary Protected Status (“TPS”); and
- Deferred Action for Childhood Arrivals (“DACA”) .
Prospective professional employees who are residing overseas require visa sponsorship in order to work for a U.S. company. In many cases, the H-1B visa is the best vehicle to achieve this.
What to Expect for the 2018 (Fiscal Year 2019) H-1B Filing Season
In 2017, the H-1B cap was met the first week of April. During the qualifying filing period, USCIS received 199,000 applications competing for the limited 85,000 total H-1B spots. USCIS then held a lottery to select the petitions it would accept for adjudication. The government then rejected those H-1B applications that were not selected under the lottery process, as well as all cap-subject petitions received after April 7, 2017.
For 2018, we anticipate robust demand for H-1Bs, and expect that the quota will again be exhausted the first week of April. To ensure the best chance of securing an H-1B petition for a valuable employee, employers must work with their immigration counsel to ensure H-1B applications reach USCIS between April 2 and April 6. This is our best estimate of the qualifying filing period based on recent years. It is not officially announced by USCIS until sometime in March, based on what we have seen in the last few years.
When Should I Start the H-1B Process?
In light of the expected demand for H-1Bs, employers who would like to sponsor a worker for an H-1B petition should act quickly and begin working with an experienced business immigration attorney well in advance of April 1. There are several prerequisite steps that must occur before an employer can file an H-1B petition with USCIS. These steps include registering the company with the Department of Labor (DOL), posting required notices, and obtaining DOL certification of a Labor Condition Application. These prerequisite steps can take several weeks. Starting early will allow sufficient time to accomplish all required steps.
Employers' Bottom Line
After the Fiscal Year 2019 H-1B quota is exhausted the first week of April, employers will have to wait until April 1, 2019, for another opportunity to file cap-subject H-1B petitions. Meanwhile, their employees may risk losing legal status and work authorization.