Time to Get Ready for H-1B Cap Season and Start Preparing Those H-1B Petitions

by Protima Daryanani

Now that the holiday season is over, and after you’ve taken a few deep breaths, it’s time to start preparing for that other important season. We’re talking about H-1B cap season. In only four short months—April 2, since April 1 is a Sunday—we will be able to file new H-1B petitions for people who have never had H-1Bs, commonly referred to as “cap cases.” (Non-cap H-1B petitions, including extensions of existing H-1Bs and change-of-employer H-1B petitions, can be filed throughout the year.) Unfortunately, as in previous years, we will likely only have a window of a few days before the cap is filled and we are left pining away for more H-1Bs for another year.

Even though April 2018 seems like a long way off, H-1B cap season can potentially be a stressful and busy time for employers and foreign nationals, and so we strongly recommend planning ahead and getting started on preparing cap cases as soon as possible. This upcoming H-1B cap season is for Fiscal Year (FY) 2019, and petitions can be submitted for receipt on April 2 (since April 1 is a Sunday) for a start date of October 1, 2018. Each new H-1B season is an excellent time to review what foreign nationals and employers should know about H-1B cap cases.

What is the H-1B Cap?

The H-1B is a nonimmigrant visa for foreign nationals who will be employed temporarily in a “specialty occupation,” or as fashion models of distinguished merit and ability. A specialty occupation is defined as one that requires a bachelor’s degree, or the equivalent experience, in order to perform the duties of the position offered. For example, architects, graphic designers, accountants, lawyers, engineers, and computer programmers, are all specialty occupations and, therefore, likely to be eligible for H-1Bs. H-1B petitions are granted for up to three years at a time, for a maximum of six years. H-1B visa holders may also be sponsored for permanent residence which could allow for an extension of the H-1B petition past the six years.   

Under the current law, there is an annual limit of 65,000 new H-1Bs. This is referred to as the “H-1B Cap.” There are an additional 20,000 visas available for current or prospective employees who possess an advanced degree earned at a US accredited educational institution. This is referred to as the “Master’s Cap.” New H-1Bs become available on October 1, the first day of the government’s fiscal year. US Immigration & Citizenship Services (USCIS) will only start accepting petitions for a new H-1B six months prior to the beginning of their new fiscal year (i.e., April 1, or this year April 2 since the 1 is on a Sunday).

To whom does the H-1B cap apply?

The cap applies to those individuals who have never held H-1B status or who have been outside the US for more than a year after having held H-1B status in the US. Renewals or extensions of H-1B status are not subject to the cap. In addition, cases filed by certain academic and research institutions are not subject to the cap. Petitions for J-1 physicians who receive a waiver of the two-year home residence requirement are also not subject to the cap.

How do I get one of these H-1Bs?

The most important step is for a foreign national to have a job offer with a US employer. That employer must file a petition with USCIS, including a Labor Condition Application (LCA) attesting the employer will pay the prevailing wage along with other attestations about its hiring endeavors. As mentioned, this petition can be filed no earlier than April 2 (since April 1 is on a Sunday) for the H-1Bs that become available in October. In the last few years, the number of petitions received by USCIS in the first week of April exceeded the number of available H-1Bs. Therefore, USCIS conducted a lottery of all cases received within a certain window of days. If a case was picked, it was adjudicated, and, if approved, the foreign national could start working on October 1 of that year.

Given how fast the H-1Bs ran out last year for FY 2018—USCIS announced that they received 199,000 H-1B cap-subject petitions during the filing period—we believe the cap this year may be hit in the first week again. If that is the case, USCIS will allow five business days to file all cases and then will conduct a random lottery. If the case is not picked, the file will be returned with the government filing fees likely within two to three months.

Can I ask multiple employers to file H-1Bs for me if I have multiple offers so I can increase my chances?

A single petitioner cannot file more than one cap-subject petition at a time for the same beneficiary. In some circumstances, multiple companies may be able to file a non-duplicative H-1B petition for the same beneficiary for different job opportunities. Companies who are interested in filing petitions for the same beneficiary should consult with an experienced attorney, since USCIS will likely closely scrutinize these types of petitions. 

Can I file my H-1B case via premium processing?

Last year, at the last minute, USCIS temporarily suspended premium processing for all H-1B petitions effective April 3, 2017, the beginning of the filing period for H-1B cap cases. During the premium processing suspension, which lasted until October 2017, petitioners were not able to file premium processing requests for either H-1B cap or cap exempt petitions. It’s expected that this will happen again this year.

If premium processing is available, however, there may be some benefit in using this service. Cap cases filed premium processing with USCIS benefit from a faster notification time if the case is picked for adjudication. For cap cases filed premium processing, the premium processing (a guaranteed fifteen-calendar-day response time) will not start until USCIS has had sufficient time to sort the cases and conduct the random lottery. Cap cases filed via regular processing have been known to take five to six months or longer to process and employers are notified by email if the case is picked in the lottery for premium processing cases. When premium processing has been available for cap cases, we have noted that employers and foreign nationals with premium processing cases knew whether their case was selected for the H-1B cap faster than those filing under regular processing.

I am a student and my work card runs out in the summer. I cannot afford not to work. What can I do?

With respect to students on F-1 visas who are working on Optional Practical Training (OPT) which expires after April 1 and before October 1, as long as the petitioning employer files the H-1B prior to the cap being hit and before the OPT expires, and as long as the case is selected in the H-1B lottery, the foreign national’s work authorization will be automatically extended until October 1 by virtue of the H-1B filing. This is called “Cap Gap.” To ensure that all is in order with their F-1 status, once foreign nationals are certain their H-1B case has been picked in the lottery:

  1. Foreign nationals must take the H-1B receipt notice to their school to receive a new I-20 indicating the extension of the OPT; and
  2. Foreign nationals must remain in the US between the expiration of the OPT and October 1 in order to have continued work authorization. If foreign nationals travel internationally during this time, they will abandon the change of status and may not be able to return to the US until September 21.

Wow, this is really ridiculous! You mean I have to ask an employer to pay a ton of fees and wait for me for six months and even then we have less than fifty percent chance of being picked? What can we do to change this?

Sadly, this is the current system until we have more H-1Bs. The immigration reform bill passed by the US Senate way back in 2013 contained language to make more H-1Bs available; however, this bill didn't proceed in the House and since then comprehensive immigration reform has completely stalled. US employers and businesses can contact their local congressperson or senator to explain the harm to US businesses when they cannot hire a foreign national under the H-1B program. See below question about possible changes to the H-1B program.

In the meantime, if foreign nationals have degrees in STEM fields (science, technology, engineering, and mathematics) from a US institution and are now working on OPT, they may be able to extend their OPT card for an additional seventeen months which would likely allow another chance to try for an H-1B in the following year.

Employers could also look into other visa options. For example, nationals of Canada, Australia, Singapore, and Chile may be able to apply under the TN, E-3, or H-1B1 respectively. A consultation with an immigration lawyer to review all the visa options available to the foreign national could be useful at this point. USCIS also lists the various visa categories and describes how one may be eligible.

Will President Trump or Congress make any changes to the H-1B program this year?

At this time, neither Congress nor President Trump have made any changes to the H-1B program. Nonetheless in processing the cases last year we noticed a significant increase in Requests for Evidence (RFE’s). Most of the RFE’s seemed to focus on a mistaken assumption that if a person holds a junior position in the company (as reflected by their salary) their duties would not be complex enough for them to be eligible for an H-1B. The Service was essentially confusing the seniority of the position with the complexity of the position. It is likely that this issue or a variation of it will come up again this year.

Additionally, in his executive order “Buy American, Hire American” signed last year, President Trump called for the secretary of state, the attorney general, the secretary of labor, and the secretary of homeland security to “suggest reforms” to the H-1B program. In response, USCIS has announced they will propose new regulations in 2018 with the focus of “strengthening” the H-1B nonimmigrant program and petitioning process. They state:

The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.

To be clear, no changes have been made as of yet. We will update this blog with any developments regarding the H-1B program.

Any last words of advice?

Good luck, everyone!

UPDATE MARCH 21, 2018: USCIS has announced that starting April 2, 2018, the first day that H-1B Fiscal Year (FY) 2019 cap cases can be received, USCIS will temporarily suspend premium processing for all cap-subject petitions, including master’s cap exemption cases.