The H-1B cap case preparation season has begun! Employers filing initial H-1B petitions for current or prospective employees must start well in advance of the limited five-day April filing window. United States Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions on Monday, April 3, 2017 for fiscal year 2018. The annual numerical limit, known as the “cap,” will almost certainly be exceeded on the first day of filing. If that occurs, the USCIS will allow H-1B cap subject filings through April 7, 2017 and, thereafter, will conduct a random lottery to select the cases that will be processed and adjudicated.
H-1B petition preparation cannot wait until the last minute, as there are requirements within the process that cannot be shortcut or expedited. The most inflexible and rate-limiting of these requirements is the Labor Condition Application (LCA). The LCA must be approved by the Department of Labor (DOL) before the H-1B petition can be filed. LCAs are generally processed within seven business days of submission, but system overloads during this peak season can delay the process. Moreover, LCA preparation includes information gathering, logistical issues, and, in some cases, resolution of various complexities prior to LCA submission.
H-1B Basics: Cap Timing and Limits
The H-1B category is appropriate for temporary professional workers. This category is limited to positions that require at least a bachelor’s degree (or equivalent). It is commonly used for IT professionals, engineers, architects, doctors, teachers, pharmacists, researchers, and other positions that require what immigration law refers to as “specialized knowledge.” The annual H-1B “cap” limit of 65,000 cap numbers (plus 20,000 advanced degree exceptions) applies primarily to cases filed for individuals who have never previously held H-1B status.
The timing of the H-1B cap filings is related to the October 1 start date of the US government fiscal year. The cap numbers are available as of the October 1 start of the fiscal year. H-1B cases can be filed six months in advance of the requested start date. Thus, a request for an October 1 start date can be made on April 1. The cap limits make filing in April necessary, as the first day filings have exceeded the limit since fiscal year 2014.
Identify Employees and Candidates
Employers who have not already done so should identify which of their employees will require H-1B sponsorship for fiscal year 2018. They should also consider whether candidates for open positions will need H-1B cap filings for the upcoming fiscal year. Among the likely candidates are employees who have recently graduated from US colleges. These employees often start working with Optional Practical Training (OPT), but require H-1B sponsorship to permit longer-term employment.
In addition to H-1B employees, employers should consider whether they should try to move employees out of potentially vulnerable immigration categories and into H-1B. For example, as discussed in our November 15, 2016 advisory, TN Visa Category Faces Uncertain Future, employers may want to consider H-1B options, where appropriate, for TN employees. There are other employees to consider for this category, including H-4 and L-2 spouses working pursuant to Employment Authorization Documents (EADs). These individuals often want or need to move to a category that is not spouse-dependent.
Prepare for the New Administration: Restrictions Likely by Next Cap Year
The Trump Administration has set its sights on immigration restrictions and enforcement. The focus extends well beyond the familiar plans for a wall at our southern border. In recent years, the commonly used employment-based categories, in particular the H-1B and L-1, have been the subject of scrutiny and proposals for restriction. These efforts have begun, yet again, within days of the start of the new, 115th Congress.
While it may seem counterintuitive to seek out a category that is likely to be targeted for restrictive legislative changes, those who wait until next year are likely to face additional challenges. Legislation proposed unsuccessfully last year sought to overhaul the lottery process and significantly restrict the category. Similar legislation could be reintroduced in the upcoming year with a greater likelihood of passage. Such changes, if enacted, would make it even more difficult obtain H-1B approval in fiscal year 2019.
Preparation is Vital: No Second Chance
In addition to the timing limitations created by the LCA process, H-1B cap case filings are largely unforgiving of any errors or weaknesses. The case must be proper when filed. While the USCIS can issue Requests for Evidence (RFEs), asking for additional support for eligibility, the case details and overall strategy cannot be changed after filing. H-1B cases involve many interconnected details, including job descriptions, job categories, location(s) of employment, and specific project assignments. While the USCIS will accept evidence reinforcing the case in response to an RFE, employers can not alter the case fundamentals nor fix errors in response to an RFE. Thus, it is important to have sufficient time before filing to consider important case nuances and resolve potential problem areas. Otherwise, the case is not likely to succeed, and the cap numbers will be unavailable until the following year.