Introduction Timeline Preparatory steps

Introduction

The H-1B cap season for fiscal year 2018 is fast approaching. Last year, US Citizenship and Immigration Services (USCIS) received 236,000 H-1B cap petitions, resulting in an acceptance rate of 36%. It is likely that competition for one of the 20,000 master cap and 65,000 regular cap slots will remain high, given the low unemployment rate in the United States.

Companies should take steps now to assess their H-1B needs for the upcoming H-1B cap season and begin to collect the necessary documentation for H-1B cap petition filings in order to maximise their chances of success.

Timeline

The first day that a H-1B cap petition may be filed with USCIS for fiscal year 2018 is April 3 2017 (as April 1 2017 falls on a Saturday, USCIS will begin accepting H-1B cap petitions the following Monday). USCIS will continue to accept H-1B cap petitions until the quota is reached. If the quota is reached within the first five business days (ie, April 3 2017 to April 7 2017), USCIS will continue to accept H-1B cap petitions through April 7 2017, and then use a computerised lottery system to randomly select those H-1B cap petitions to fill the 20,000 master cap and 65,000 regular cap slots. Employers interested in filing H-1B cap petitions must ensure that their H-1B cap petitions are received within the April 3 2017 to April 7 2017 window, since it is likely that the H-1B quota will be reached within these first five business days in April.

Preparatory steps

Sponsoring employers may wish to take the following preparatory steps in order to be prepared to file H-1B cap petitions on April 3 2017:

  • Determine how many H-1B petitions will need to be filed based on the company's requirements, and identify the foreign nationals who will be the beneficiaries of those H-1B petitions.
  • Work with an attorney to prepare labour condition applications for filing early in the season (labour condition applications generally take the Department of Labour (DOL) seven to 10 days to process). As the DOL can experience processing delays as the window to file H-1B petitions approaches, companies should file their labour condition applications early.
  • Gather documents from foreign nationals, such as degree certificates, academic transcripts and end client documents, and forward company job descriptions to an attorney.
  • Perform a financial analysis to determine the money required to process the company's H-1B petitions. In this regard, on December 23 2016 USCIS raised its filing fees for most of its forms. The filing fee for Form I-129 Petition for a Non-immigrant Worker is now $460; the filing fee for Form I-539 Application to Extend/Change Non-immigrant Status is now $370. All other filing fees with respect to H-1B petition processing that need to be paid to USCIS remain the same.

It is unclear whether any changes will be made to the H-1B programme in the months before the H-1B cap season, following the recent US presidential election results.

USCIS will continue to scrutinise H-1B petitions. Within the last year, the DOL has increased penalties for labour condition application violations, and increased audits and site inspections by the DOL and USCIS are possible.

Therefore, information must be presented accurately in a H-1B petition filing with respect to, among other things, job duties, work location and wage level selection. Employers must also comply with the labour condition application attestations regarding, for example:

  • paying the required wage;
  • properly posting notice of filing of labour condition applications; and
  • ensuring that there are no strikes or lock-outs in the occupational classification at the place of employment listed on the H-1B petition.

Failure to comply with government regulations may result in fines, criminal penalties or company debarment from the H-1B programme.

For further information on this topic please contact Matthew C Morse at Fakhoury Global Immigration by telephone (+1 248 643 4900) or email (matt@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

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