Get Ready for H-1B Cap Filings on April 2, 2018

The Immigration Group at Ryan Swanson advises employers to start early preparation of H-1B petitions subject to the annual quota or cap for the 2019 fiscal year.  Based on prior years, it is anticipated that USCIS will start accepting H-1B cap-subject petitions on Monday, April 2, 2018, for at least five business days, until April 6, 2018.

Congress has imposed an annual limit of 65,000 H-1B visas available to individuals with a Bachelor’s degree (or equivalent), and an additional 20,000 H-1B visas available to individuals who have a U.S. master’s degree. Last year, USCIS received nearly 199,000 H-1B petitions in the first week, and fewer than 50% of the H-1B petitions were selected in the lottery.

Employers should initiate any H-1B petitions subject to the cap well in advance of this year’s anticipated April 2, 2018 filing date to ensure timely filing of the petition. Current filing fees for H-1B petitions include a $460 filing fee, $500 anti-fraud fee, and $1,500 ACWIA Training fee (if the employer has 25 or more employees), or $750 fee (if the employer has less than 25 employees). Employers may elect premium processing for an additional $1,225 fee.

The Department of Homeland Security has proposed certain policy changes to the H-1B program and other work visa programs under the President’s “Buy American, Hire American” Executive Order. Potential changes may include:

• Electronic registration program for H-1B cap petitions requiring employers to pre-register for the H-1B cap lottery.
• Definition changes for “specialty occupation” and “employer-employee relationship.”
• Termination of employment authorization (EAD) for spouses of H-1B visa holders who hold H-4 status.
• Limitations on or possible elimination of the STEM OPT work authorization program (allowing foreign students in F-1 status with a U.S. degree in a STEM field to work for an additional 24 months beyond the expiration of their OPT EAD).

While these changes are only in the early proposal stages, we recommend that employers be prepared for any potential changes to the H-1B program as well as possible changes to or elimination of other work visa programs, including H-4 EADs, STEM OPT EADs for F-1 students, TN visas (under NAFTA), and L-1 visas. Please contact the immigration attorneys at Ryan Swanson as soon as possible if your company is considering filing any H-1B cap petitions this year.