Looking into our Crystal Ball to Plan Ahead for H-1B Season

by Shumaker, Loop & Kendrick, LLP

Shumaker, Loop & Kendrick, LLP

It’s hard to believe that H-1B season is around the corner! United States Citizenship & Immigration Services (“USCIS”) will start accepting new H-1B petitions for fiscal year 2019 on Monday, April 2, 2018. As such, employers should start immediately identifying current and future employees who will require sponsorship for new H-1B petitions.

By way of background, USCIS issues H-1B visas to foreign workers serving in “specialty occupations at a professional level.” A specialty occupation requires theoretical and practical application of a body of highly specialized knowledge, to be performed by a worker with at least the equivalent of bachelor’s degree in the field. Both the position to be filled and the foreign worker’s qualifications must meet the criteria for a specialty occupation.

The statute provides for an annual quota of 65,000 new H-1B visas that can be issued in any given fiscal year, which runs from October 1 to September 30. In addition, there is a separate quota of 20,000 H-1B visas per fiscal year for graduates of U.S. advanced degree programs, for a total of 85,000 H-1B visas. Because the annual quota was met within days of the first day of filing (April 1, six months before the start of the fiscal year) on a consistent basis the last few years, all petitions are placed into a random computer lottery system. Only those petitions selected in the lottery will be deemed receipted (with a receipt notice being issued by USCIS) and proceed to adjudication.

Despite the current administration’s attacks on the H-1B visa, business immigration practitioners expect that this year’s H-1B demand will be the equivalent with more than half of all H-1B petitions filed by employers rejected due to the haphazard lottery system. Affected foreign nationals whose petitions are not chosen will be unable to obtain an H-1B visa until the next fiscal year and may be required to forgo employment with employers and possibly leave the United States. In such instances, employers will need to look at alternative visas for affected employees.

Thus, in this climate, our firm strongly urges employers to file H-1B cap-subject petitions with USCIS on the earliest possible date in fiscal year 2019. Ideally, this would mean mailing the petition to USCIS on March 31, 2018 for delivery to USCIS on Monday, April 2, 2018, the very first day of filing. In order to do this, employers with potential H-1B cap subject petitions should review their workforce needs, determine whether they will need to sponsor any potential foreign nationals, and initiate cases immediately.

Obtaining an H-1B visa for an employee requires significant advance planning. It can take sometimes two to four weeks to gather all of the necessary information and supporting documentation, file the Labor Condition Application, and prepare the petition for filing with USCIS. Additionally, ever since USCIS started implementing President Trump’s “Buy American and Hire American” Executive Order, employers should be prepared to see more requests for evidence focusing on the appropriateness of a specific salary, questioning an employee’s qualifications, and whether a position qualifies as a specialty occupation.

In sum, with H-1B season almost upon us, employers should not hesitate or wait to contact immigration counsel to begin working on cap subject petitions.

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.

© Shumaker, Loop & Kendrick, LLP | Attorney Advertising

Written by:

Shumaker, Loop & Kendrick, LLP

Shumaker, Loop & Kendrick, 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.