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UNITED STATES - Plan Now for FY 2019 Cap-Subject H-1B Filings

On 2 April 2018, the US Citizenship and Immigration Service (USCIS) will start to accept H-1B petitions from cap-subject employers for skilled foreign workers.

Why is this Important?

USCIS may only approve 65,000 new H-1B petitions per fiscal year (the "cap") with an additional 20,000 available each fiscal year for individuals with advanced degrees from US institutions. Last year, USCIS received over 233,000 petitions, and even more are expected this year.

If USCIS receives more than enough petitions to meet the quotas during the first five business days of the filing season (i.e., 2 April to 6 April 2018), it stops accepting petitions and conducts a computerized lottery to choose cases for processing.

Timing of H-1B Petitions

  • Cap-subject employers should ensure their H-1B petitions are submitted by 5 April at the very latest.
  • To file an H-1B visa petition, an employer must first obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL). Currently, the DOL is taking seven calendar days to certify an LCA. However, regulations permit the DOL to take up to ten business days.
  • In addition, if a company has not filed an LCA since 2008, it is likely not registered with the DOL, and will first need to be registered through a process that takes an additional three business days.
  • In previous years, the high usage rate of the online LCA system towards the end of March caused the website server to shut down or function extremely slowly.
  • Moreover, a prospective H-1B employee whose degree is not from the US will need to have their degree equivalency attested by an accredited credential evaluation company, which may take more than 24 hours.
  • Workers benefiting from approved petitions may start work on 1 October of the same year.

What is the H-1B Visa?

H-1B visas are the most common temporary work permits available to foreign national professionals. They are obtained routinely by US businesses that require foreign professional workers possessing at least a bachelor's degree or its equivalent in a particular field.

An H-1B employer must also attest to paying the same salary and benefits packages normally offered to US workers in similar positions and to observing the H-1B program's specific public notice and recordkeeping requirements.

Action Items

  • Employers should start planning their H-1B filings as soon as possible to ensure they are accepted by USCIS for the lottery.

This news alert was prepared using information provided by Littler.

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2017 Peregrine Immigration Management Ltd.