Plan Now for FY 2018 Cap-Subject H-1B Visa Petitions

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Now that we have rung in 2017, it is a good time to start planning for Fiscal Year 2018 cap-subject H-1B petitions.  Even though Fiscal Year 2018 starts October 1, 2017, U.S. Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions on April 1, 2017. It is critical that employers begin as soon as possible to prepare to file H-1B petitions for current and prospective employees who will need H-1B visa status in order to be employed in the U.S.

By way of background, U.S. businesses use the H-1B program to temporarily employ foreign workers in specialty occupations. Though the H-1B program is often associated with fields such as science, engineering, and information technology, it is also available to foreign workers in accounting, finance, architecture and other fields.

The law imposes an annual limit, or cap, on the number of new admissions in the H-1B visa category. The mandated cap on H-1B visas for each fiscal year is 65,000 (regular cap) less 6,800 for citizens of Chile and Singapore pursuant to free trade agreements. In addition, the first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the regular cap (Master’s exemption).

H-1B petitions may be filed up to six months in advance, or April 1 for the upcoming fiscal year beginning October 1. If USCIS receives an excess of petitions during the first five business days of April, the agency will use a computer-generated random selection process, or lottery, to select enough petitions to meet the cap. USCIS will reject all unselected cap-subject petitions, as well as any petitions received after the cap has closed.  

Demand for the H-1B has steadily increased over the past four years. During FY2017, USCIS received more than 236,000 cap-subject petitions during the first five business days of April.  It is likely that more cases will be filed for FY2018.

To maximize the chance for inclusion in the H-1B lottery, employers should begin identifying current (i.e., those in F-1 student status with employment authorization) and prospective employees who will need an approved H-1B visa petition to maintain work authorization, and initiate preparation of cap-subject H-1B petitions as early as possible.  

Please keep in mind that not all H-1B petitions are subject to the annual cap (i.e., extensions, amendments, change of employer) and certain foreign nationals may be eligible for nonimmigrant visa categories other than H-1B (i.e., H-1B1, TN, L-1, E). Please consult our immigration practice group for individualized assessment.

We wish you a very lucky H-1B lottery season!

Any opinions expressed and any legal positions asserted in the article are those of the author(s) and do not necessarily reflect the opinions or positions of Miles & Stockbridge P.C. or its other lawyers. This article is for general information purposes and is not intended to be and should not be taken as legal advice on any particular matter. It is not intended to and does not create any attorney-client relationship. Because legal advice must vary with individual circumstances, do not act or refrain from acting on the basis of this article without consulting professional legal counsel. If you would like additional information on the subject matter of this article, please feel free to contact any of the lawyers listed above. If you communicate with us, whether through email or other means, your communication does not establish an attorney-client relationship with either Miles & Stockbridge P.C. or any of the firm's lawyers. At Miles & Stockbridge P.C., an attorney-client relationship can be formed only by personal contact with an individual lawyer, not by email, and requires our agreement to act as your legal counsel together with your execution of a written engagement agreement with Miles & Stockbridge P.C.

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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.

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