H-1B petitions expected to exceed caps again as filing opens

1 Apr 19

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.

The Trump administration continues to take steps to reform the program. This year will be the first in which the order of the regular and advanced-degree lotteries will be reversed, under a new regulation that took effect April 1. U.S. Citizenship and Immigration Services has launched a new H-1B Employer Data Hub that allows the public to search for H-1B petitioners by fiscal year, NAICS industry code, company name, city, state or ZIP code. The agency will offer premium processing in two phases. The first phase of premium processing will begin May 20 and cover only H-1B change-of-status petitions; the second phase of premium processing will cover all other cap-subject petitions and is expected to begin in June or later.

For first-time filers or those in need of a refresher, here is how the H-1B cap 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.
  • USCIS 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 during that period.
  • If the cap is reached within five business days, USCIS will conduct a two-step, computer-generated lottery. This year, USCIS will include all U.S. advanced-degree holders in the general lottery first. Then, if needed, the agency will conduct a second lottery only for advanced-degree holders. The effect will be to improve the odds that advanced-degree holders will be selected in the H-1B visa lottery.
  • 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 4.5 percent to 190,098 last year but still easily exceeded the cap. Despite the administration’s efforts to tighten access to the H-1B and related programs, volume is expected to be high again this year. USCIS has issued more H-1B denials and requests for evidence and expanded compliance site visits. The administration is also preparing to publish a proposed regulation to end work authorization eligibility for H-4 spouses of H-1B workers. USCIS has plans to introduce a mandatory online registration system for employers hoping to sponsor H-1B candidates under the annual cap next year. The administration initially aimed to implement the registration system this year but decided to postpone implementation in January.

BAL Analysis: The H-1B cap has been reached during the first week of filing in each of the past six years and there is every indication that this will happen again this year. BAL will report any significant H-1B developments, including information about the number of petitions, the completion of the lottery and the resumption of premium processing for cap-subject petitions.

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

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