• 07Feb
    H-1B Visa News Comments Off on HR / LEGAL ALERT: Plan NOW For New H-1B Petitions To Be Filed Under The H-1B Quota on April 2, 2018

    This is a reminder to our clients (and prospective clients) that your once-a-year opportunity to file petitions seeking new H-1B visa numbers under the annual H-1B quota is approaching rapidly.  Indeed, the H-1B quota (or H-1B cap) will open on Monday, April 2, 2018 and, by regulation, will remain open for 5 business days, until Friday, April 6, 2018.  As such, you have a short, 5-day window to seek  an H-1B classification for your foreign national employees who do not already possess an H-1B.

    As you may recall from the H-1B cap season from last year, H-1B cap-subject petitions faced a heightened level of scrutiny leading to a significant increase in the number of Requests for Further Evidence (RFE). Based on USCIS statistics, nearly 40% more RFEs were issued in 2017 than in all of 2016, and 65% more than in all of 2015.  The new administration’s “Buy American and Hire American” executive order is likely a factor in the increase in the number of RFEs issued.

    Given continued pent-up demand for the H-1B classification, we fully expect the H-1B cap to be reached in the first week of filings.  Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions for a full year, until Monday, April 1, 2019.  As such, we strongly encourage you to identify any employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely April 2, 2018 filing.

    HUMAN RESOURCES ACTION NEEDED:  Assess Your Cap-Subject H-1B Needs:

    H-1B visas are available for specialty (professional) occupations requiring at least the attainment of a bachelor’s degree or its equivalent in a relevant discipline. For current or prospective employees, U.S.-based employers should take the time to consider who the Company may need to sponsor for an H-1B for Fiscal Year 2019.

    Here are some of the most common candidates for an H-1B under the annual cap:

    • F-1 visa holders (student interns / recent graduates) who are working for you pursuant to an Employment Authorization Document issued in connection with an approved period of post-grad Optional Practical Training (OPT);
    • F-1 visa holders (student interns) who are working for you while in school pursuant to  university-approved Curricular Practical Training (CPT);
    • J-1 visa holders (interns/trainees) whose training programs will expire and who will need a change their status from J-1 to H-1B in order to continue working for you;
    • TN employees (Canadian and/or Mexican NAFTA professionals) who may require an H-1B to be eligible to apply for adjustment of status to that of a lawful permanent resident – especially considering the Trump administration’s plan to renegotiate, and possibly rescind, NAFTA;
    • L-1B visa holders (intra-company transferees with specialized knowledge) approaching the end of their initial 3 years of L-1B eligibility who may need to switch to an H-1B as a necessary component to planning your long-term strategy of pursuing lawful permanent residence for that employee;
    • O-1 visa holders who are coming up for expiration within the next year as O-1s are renewable in only 1 year increments (as compared to a 3 year period for an approved H-1B); and
    • Potential candidates who are living and working abroad and have not been previously counted against the H-1B cap.

    PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B employees seeking to file an extension of stay or existing H-1B workers for whom you may desire to file an H-1B transfer petition are not subject to the H-1B cap.

    The Importance of Early Preparation:

    This year, cap-subject H-1B petitions will be accepted by USCIS during the period of April 2-6 and a random lottery will be conducted to determine which petitions will be adjudicated.  Any petitions filed after the cap has been met will be returned and cannot be re-filed until the following year.

    To assure a timely filing, Labor Condition Applications (“LCAs”) should be submitted to Labor Department by the beginning of March, and petitions should be ready for filing before April 2, 2018.  With that said, gathering the necessary supporting documentation and preparing the H-1B visa filing materials can be time consuming (especially in this environment of increased scrutiny). Preparation includes assembling background and educational documents, drafting and signing letters and forms, and submitting an LCA with the Labor Department for certification. Early preparation is therefore essential.

    It is now more important than ever to hire experienced immigration attorneys who can properly guide you through the H-1B process.

    If you have any questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.