H-1B cap filing opens; petitions expected to exceed caps

2 Apr 18

UNITED STATES

The filing period for cap-subject H-1B petitions opened Monday, with the number of petitions once again expected to exceed the number of H-1B visas available within five business days. Regulatory changes that the Trump administration plans to propose for the H-1B program will not affect this year’s lottery. For those filing for the first time or in need of a refresher, here is how the process works:

  • Congress has set the annual cap on H-1B visas at 65,000, plus an additional 20,000 visas for individuals with a master’s degree or higher from a U.S. university.
  • U.S. Citizenship and Immigration Services will monitor the number of petitions it receives and make an announcement when the cap is reached. The filing period will remain open for at least five business days, even if the cap is reached before then.
  • If the cap is reached within five business days, USCIS will conduct a two-step, computer-generated lottery. First, petitions for individuals with a U.S. master’s degree or higher will be placed in a pool from which 20,000 petitions will be selected. Those that are not selected in that phase will be placed in a second pool with all other petitions to select the remaining 65,000. Because the agency must count and confirm the number of petitions it receives, the lottery usually takes place a few days after USCIS stops accepting petitions.
  • Petitions selected in the lottery will be accepted for processing. Petitions that are not selected or that are filed after the cap has closed will be rejected.

Cap-subject H-1B filings dropped 15 percent to 199,000 last year but still easily exceeded the cap. Volume is expected to be high again this year.

The H-1B program has not been exempted from the Trump administration’s efforts to tighten the country’s visa programs. Last year, USCIS sharply increased the number of requests for evidence that it issued to companies whose H-1B petitions were accepted for processing. The agency published a policy memorandum in February, saying it will require additional information from employers who assign H-1B visa holders to third-party worksites. The agency also recently announced that it would suspend premium processing for all H-1B cap-subject petitions from now until Sept. 10. Employers should anticipate delays in H-1B cap receipts during this time.

BAL Analysis: The H-1B cap has been reached in the first week of filing in each of the past five years, and there is every indication that the same will happen this year. The Trump administration has not yet implemented proposed reforms that could change the way the lottery is conducted. BAL will report any significant H-1B developments, including regulatory proposals that could affect how petitions are adjudicated this summer.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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