Overview

On April 6 2018 the US Citizenship and Immigration Services (USCIS) announced that it had received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2019. USCIS has also received more than the 20,000 limit on 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.

Subsequently, on April 11 2018 USCIS announced that it had received 190,098 H-1B petitions during the filing period, which began on April 2 2018, including petitions filed for the advanced degree exemption. The number of petitions filed this year is down from the record-breaking filings for FY 2017, during which USCIS received 236,000 petitions,(2) and down from last year, where USCIS received 199,000 petitions.(3)

USCIS process

USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing. A March 2018 memorandum referenced Matter of S- Inc, which addresses the prohibition on multiple H-1B filings by "related entities (such as a parent company, subsidiary, or affiliate)".(4) The case clarifies that the term 'related entities' includes employers, whether or not they are related through corporate ownership and control, that file cap-subject H-1B petitions for the same beneficiary for substantially the same job. Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, USCIS will deny or revoke the approval of all H-1B cap-subject petitions filed by related entities for that beneficiary.

USCIS will first conduct the selection process for the advanced degree exemption. All unselected advanced degree petitions will then become part of the random selection process for the 65,000 limit. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2018 H-1B cap. USCIS will continue to accept and process petitions filed in order to:

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

Comment

It can be inferred that the changes implemented under the Trump administration have affected the number of H-1B filings. In the two years before President Trump's immigration changes and the "Buy American, Hire American" Executive Order,(5) USCIS received a record-breaking number of H-1B cap petitions, totalling 233,000 for FY 2016 and 236,000 for FY 2017. Memoranda from several government agencies, including the Department of Labour, the Department of Homeland Security and the Department of Justice, have addressed the increasing scrutiny over the H-1B programme.

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.

Endnotes

(1) See www.uscis.gov/news/alerts/uscis-reaches-fy-2019-h-1b-cap.

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

(3) See www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2018.

(4) 8 CFR § 214.2(h)(2)(i)(G).

(5) See www.uscis.gov/legal-resources/buy-american-hire-american-putting-american-workers-first.

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.