Preparing for the 2017 H-1B Visa Cap

January 3, 2017

Happy New Year!  It’s never too early to start preparing for the H-1B Cap for Fiscal Year 2018, and our immigration attorneys are happy to aid your in the process.  Demand for the H-1B visa has steadily increased over the years; last year for instance, only about 36% of the H-1B petitions were selected in the lottery.  Employers should expect this trend to continue and be prepared to file their H-1B petitions on the earliest possible date, which is April 3, 2017 this year.

The H-1B is a significant visa category as it allows qualified professionals to enter the U.S. for employment in a specialty occupation.  Due to the ever-increasing demand for the visa, it is important the employers evaluate their employee populations early to ensure that all petitions are submitted by the earliest possible date.  Some of the different types of employees eligible for H-1B visas are F-1 Students and L-1B visa holders.

Students, particularly those on F visas, currently working for you pursuant to an approved Optional Practical Training (OPT) should be the first group of employees to consider for filing an H-1B petition.  The reason being that if you do not file H-1Bs for these employees, they will lose their employment authorization at the conclusion of their OPT.  Even when employees may extend their OPT, the employer is still advised to file an H-1B for the 2018 fiscal year, giving the employees two opportunities to obtain the H-1B.  In the event that more applications are filed than visas available and student employees do not obtain the H-1B this year, then the OPT extension will serve as a back-up and the employer may file for the H-1B again next year.

The L-1B visa is for intracompany transferees who are being relocated to the U.S. to serve in a specialized knowledge capacity after having been employed by the company abroad for one year in either a managerial or specialized knowledge role.  Due to the strict interpretation of what qualifies as “specialized knowledge,” many L-1B petitions have resulted in denials.  As a result, many employers are opting to file H-1Bs rather than L-1Bs.  In addition, certain applicants for green cards may run out of authorized time in the U.S. unless they are in H-1B status.  Such cases may vary and generally require legal assistance.

Under current immigration law, only 65,000 new H-1B petitions may be granted each fiscal year with an additional 20,000 available for those individuals with advanced degrees from a U.S. academic institution.  For Fiscal Year 2016, United States Citizenship and Immigration Services (USCIS) received nearly 236,000 H-1B petitions during the filing period.  It is anticipated that this trend will continue and even more cases will be filed in 2017.  Due to the large number of cases being filed, there is a significant chance that cases could miss the filing date due to delays, particularly at the Department of Labor (DOL).  As part of the H-1B petition, employers must have a Labor Condition Application (LCA) certified by the DOL.  Because volume increases in March, it is recommended that employers file as many LCA’s in earlier months as possible to ensure that the H-1B petitions are ready for filing in anticipation of April 3.

Employers should start their 2017 out right, by evaluating their nonimmigrant employee population and determining which employees should apply for the 2018 Fiscal Year H-1B Cap.