H-1B Cap: Start Planning Today for "Buy American, Hire American"

by Proskauer Rose LLP

Proskauer Rose LLP

Although we are still officially in the year 2017, it is a good time for employers to start preparing for the H-1B Cap for Fiscal Year 2019 (FY2019). H-1B cases must be filed between April 2, 2018 and April 7, 2018 to be included in the lottery. Demand for the H-1B has steadily increased over the years until last year when there was a slight drop in petitions. Specifically, USCIS received 199,000 H-1B petitions during the filing period, which began April 3, 2017; including petitions filed for the advanced degree exemption. For FY 2017, USCIS received nearly 233,000 filings for 85,000 available CAP numbers. This resulted in a larger percent of cases being selected in the lottery. However, the number of petitions filed is still much greater than the number of H-1Bs available. Employers should expect demand to continue to surpass supply and be prepared to file their H-1B petitions on the earliest possible date, which is April 2, 2018 this year (April 1, 2018 falls on a Sunday).

Recap of this past H-1B Cap: Filings received on April 3, 2017 through April 8, 2017 for employment starting October 1, 2017

Although a larger percent of cases were selected in the lottery this year, there were significant changes to the processing of these petitions. USCIS implemented the Executive Order "Buy American, Hire American: Putting American Workers First" which was signed on April 18, 2017. (See: https://www.uscis.gov/laws/buy-american-hire-american-putting-american-workers-first). Specifically there were both procedural and substantive changes that affected the H-1B cap and filings this year.

  • Procedural changes:
    • Premium Processing Freeze: Premium Processing is expedited processing at USCIS. Generally, H-1B petitions are eligible for review in 15 days or less for an additional filing fee of $1,225. USCIS will issue either an approval or a Request for Evidence in 15 days or refund the fee. On March 3, 2017, USCIS suspended Premium Processing for ALL H-1B filings at USCIS for approximately 6 months. This suspension resulted in a slower processing of H-1B petition at USCIS so that some cases are still pending today.
    • Surge in Requests for Evidence (RFE): There was an increase in RFEs for H-1B cap cases this year. In addition, USCIS implemented their power to issue second RFEs in many cases – a step previously reserved for the rarest of circumstances. This created additional delays in processing and a tougher environment overall.
  • Substantive changes:
    • Specialty Occupation: The H-1B visa is reserved for jobs that qualify as a "specialty occupation." This year there was a tightening of what occupations qualify, as USCIS issued RFEs questioning the job classification and whether a degree was required for the role.
    • Salary: Specifically, there was a significant increase in the number of Requests for Evidence (RFEs) issued to employers seeking justification for entry level wages. Specifically, employers were asked to justify entry level wages indicating that such wages may undercut whether a role can qualify as an H-1B specialty occupation.
    • Beneficiary qualifications: In many instances, USCIS questioned whether the foreign national's degree and / or experience qualified the individual for the specialty occupation in the H-1B petition. Specifically USCIS focused on cases where the degree was not clearly related to the occupation or where the foreign national did not have an equivalent of a US degree.
    • Recent Graduates from US Academic Institutions: USCIS focused on recent graduates and students who were working pursuant to Practical Training. There were questions regarding whether these foreign nationals were properly maintaining their student status as wells as whether their US universities had correctly granted Practical Training.

Many of the RFES include many or all of the substantive questions outlined above. In cases where all of the issues were not included in the original RFE, some were issued a second RFE. It appeared that USCIS officers were learning new ways to apply the Executive Order and related training. Most distressing, a greater number of H-1B Cap petitions were actually denied this year; although official numbers have not yet been released. Of course, not all of the H-1B Cap cases have been adjudicated yet due to the numerous RFEs that were issued and the interruption in Premium Processing.

Immigration Practitioners will be able to learn from the April 2017 filings and its results and plan more adequately for the April 2018 filing season. However, we may see additional changes or regulations that could continue to vex H-1B cap petitions for FY2019.

H-1B Cap Filings - Looking Ahead:

The H-1B is still a significant visa category as it allows qualified professionals to enter the U.S. for employment in a specialty occupation. Only a limited number may be granted each fiscal year (which runs from October 1st through September 30th). Under current immigration law, only 65,000 new H-1B petitions may be granted each fiscal year with an additional 20,000 available for those individuals with advanced degrees from a U.S. academic institution.

Because of the large number of cases being filed, there is a significant chance that cases could miss the filing date due to delays, particularly at the Department of Labor (DOL). As part of the H-1B petition, employers must have a Labor Condition Application (LCA) certified by the DOL. No H-1B petition will be accepted by USCIS without a certified LCA. Normal processing of LCAs generally takes about 7 to 8 days. However, as volume increases in March, LCAs may take longer. Proskauer recommends filing as many LCAs in earlier months as possible to ensure that the H-1B petitions are ready for filing in anticipation of April 2.

Evaluating Your Potential H-1B Population:

Due to the increased demand for the H-1B, it is important that employers evaluate their employee populations early to ensure that all petitions are submitted by the earliest possible date. We outline below some of the types of employees to review when making decisions whether to file an H-1B petition.

F-1 Students: Students, particularly those on F visas and currently working for you pursuant to approved Optional Practical Training (OPT) should be the first group of employees to consider for filing an H-1B petition on April 2nd. The reason for this is simple. If you do not file H-1Bs for these employees, they will lose their employment authorization at the conclusion of their OPT (unless they are able to extend it in the limited circumstance described below).

Moreover, even when employees may extend their OPT it is advised to file an H-1B for Fiscal Year 2019. This gives the employees two opportunities to obtain the H-1B. If more applications are filed than visas available and these employees do not obtain the H-1B this year, then the OPT extension may serve as a backup and you can file for the H-1B again next year.

L-1Bs: In recent years the L-1B visa category has faced increased scrutiny. The L-1B is for intracompany transferees who are being relocated to the U.S. to serve in a specialized knowledge capacity after having been employed by the company abroad for one year in either a managerial or specialized knowledge role. The strict interpretation of what qualifies as specialized knowledge has resulted in denials of many L-1B petitions. Therefore, rather than file an L-1B extension many employers are opting to file H-1Bs.

Certain Green Card Cases: Certain applicants for green cards may run out of authorized time in the U.S. unless they are in H-1B status. We recommend you consult with counsel on such cases.

Employers and HR professionals should take time during the holiday season to evaluate their nonimmigrant population and determine which employees should apply for the FY 2019 H-1B Cap. It is not too soon to send H-1B cap cases to the lawyers!

Issues Spotting to Avoid RFEs This Year:

Although employers and immigration practitioners cannot control the entire H-1B process – and issues will surely arise – we can take actions to avoid issues with new H-1B petitions based on the lessons learned from last H-1B Cap season. Specifically:

  • Specialty Occupation: Employers should evaluate whether the role and job description for the foreign national is one that requires a Bachelor's degree as a minimum to enter the occupation. If it is unclear, employers can discuss the roles further with Proskauer so that we can determine if the H-1B visa is the correct classification for the role. If so, the information regarding the occupation and the employers past hiring practices for the role can be gathered and submitted proactively with the initial H-1B petition.
  • Salary: We can review with employers the prevailing wage rates for each occupation per the Department of Labor's Wage Surveys and whether an entry level wage is appropriate. Although USCIS issued many RFEs for entry level wages this past year; if the role is for a recent graduates – the employer and attorney can work together to obtain such information and evidence and again, submit it with the initial H-1B petition to hopefully avoid an RFE.
  • Beneficiary qualifications: Again, employers and immigration practitioners will be proactive this year in cases where there is not a clear nexus between the degree and the occupation. This may include submitting expert opinions with the initial filing. Regardless, employers will be better prepared should such an issue arise during the H-1B petitioning process.
  • Recent Graduates from US Academic Institutions: Although the employer cannot change how much Practical Training a US university has granted an H-1B applicant; review of the potential issue will better prepare the employer and the foreign national for possible issues. As an example, only accredited institution graduates are eligible for the 20,000 U.S. Master's Degree visas.

We will continue working with our clients to ensure that H-1B petitions are prepared and ready for filing by April 2.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Proskauer Rose LLP | Attorney Advertising

Written by:

Proskauer Rose LLP

Proskauer Rose LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.