On Monday, April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting ‘cap-subject’ H-1B petitions for the next Fiscal Year. USCIS’ 2019 Fiscal Year (FY) begins October 1, 2018. “Cap-subject H-1Bs” are H-1B petitions for persons who have not previously held H-1B status within the past six years. As always, the following foreign workers are not subject to the annual numerical limits (the “cap”):
- Workers who currently hold H-1B status; these include extensions of stay, amendments, and change of employer H-1B petitions (unless the previous employer was a ‘cap-exempt’ entity, such as a university or non-profit research institution); and
- Persons who have previously held H-1B status within the last six years and who have not been absent from the U.S. for at least a year since holding H-1B status.
The H-1B visa has become one of the most sought after work visas in America. U.S. Each fiscal year, only 65,000 petitions are accepted, with an additional 20,000 allocated for individuals with advanced degrees (Master’s degree or higher) earned from U.S. universities. In each of the past four years, the H-1B cap was reached in the very first week of April, triggering a computer-generated lottery for the full allocation of H-1B numbers for the entire Fiscal Year. As a result, “H-1B cap season” — the time frame when organizations, candidates and attorneys prepare all H-1B petitions for filing before the numerical limit is reached — is often a busy and stressful time of year. While a few months may seem like plenty of time to prepare work visa petitions, there are many steps to complete before a cap-subject H-1B petition is ready to file. Since H-1Bs are extremely important to our clients, we strongly recommend starting early. Please provide a list of your new cap-subject H-1B petitions at the earliest possible date.
In finalizing prospective H-1B hiring decisions for this year, identify which employees are candidates for a “cap-subject” petition now and start the information gathering process now. In addition to new hires, current employees that may fall into this category include:
- F-1 student visa holders currently on OPT;
- TN, E-3, and certain L-1 visa holders who wish to start (or have started) the green card process; and
- H-4 and L-2 dependents who are working pursuant to an employment authorization document (EAD).
A person seeking H-1B status must have proof that the qualifying educational degree was fully completed by the time of filing (that is, by April 1, 2018) with no remaining contingencies or requirements unfulfilled, and evidence of this must be included in the initial filing. If a person in a U.S. Master’s program will not have fully completed all degree requirements by the first day of filing, the employer should file under the regular ‘cap’ rather than risk that Master’s cap numbers will already be exhausted by the time the candidate obtains proof of completion of the graduate degree. Also, a prospective H-1B employer is permitted to file only one H-1B petition under the H-1B cap for any one prospective H-1B employee.
Please contact your FFA attorney to discuss hiring issues related to this advisory.
Finnan, Fleischut & Associates will continue to keep our clients advised of important developments in this area. If you have specific questions about how these developments affect a current or possible future situation, please contact us.