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Calling All H-1B Cap Petitions Calling All H-1B Cap Petitions

Calling All H-1B Cap Petitions

The annual H-1B cap season has begun. Because April 1, 2018, falls on a Sunday, USCIS will begin accepting petitions for H-1B temporary workers for Fiscal Year 2019 on Monday, April 2, 2018. If approved, H-1B status will become effective no earlier than Oct. 1, 2018. There are only 65,000 new H-1B visas available each fiscal year (with an additional 20,000 reserved for foreign nationals with a U.S. master's degree or higher). Employers should immediately identify any current or prospective employees who will need new H-1B visas to work in the U.S. and initiate the process now to ensure enough time for petition preparation prior to the deadline.
 
Lottery: Last year, USCIS received approximately 199,000 H-1B petitions, and 236,000 petitions were received the year. For fiscal year 2019, the number of petitions filed is again expected to greatly exceed the 85,000 limit. When demand for new H-1B visa status exceeds the numerical limitation set by Congress, a computer-generated "lottery" is used to select petitions. This classification is widely utilized by U.S. companies on behalf of foreign engineers, information technology professionals, physicians, professors, executives, managers and other professionals and is often the only available option for temporary employment in the U.S.
 
Exemptions: The H-1B annual quota applies to foreign nationals who do not presently hold H-1B status, including recent foreign student graduates who are working pursuant to "Optional Practical Training." This cap does not apply to filings for H-1B workers who have already been counted against the annual H-1B quota, which includes requests for extensions of stay or changes in employer sponsor. It also does not apply to certain types of employers qualifying for exemption from the H-1B annual quota, including institutions of higher education and their related or affiliated nonprofit entities (including some hospitals), nonprofit research organizations or government research organizations.

Obligations: All H-1B employers must pay the H-1B worker a minimum prevailing wage for the offered position, notify its existing workforce of the intention to file an H-1B petition and attest that the filing will not adversely affect the working conditions of similarly employed individuals. The category is only available for “specialty occupations” defined as requiring theoretical and practical application of a body of highly specialized knowledge and a minimum of baccalaureate level education in a specific discipline for entry into the occupation.
 
New Requirements: USCIS has confirmed there will be no procedural changes for the FY2019 Cap, but it may opt to suspend premium processing on H-1B cap petitions to allow for data entry and processing the high volume of cap petitions received. Additionally, this year’s cap petitions are expected to face the same level of heightened scrutiny the entire H-1B program has faced over the past calendar year as a result of President Trump’s “Buy American, Hire American” Executive Order.
 
To discuss H-1B eligibility and requirements, please contact Jenifer M. BrownChristl P. Glier, Kristin E. Kelley, or any member of Ice Miller's Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 

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