Business Immigration Insights

We are now less than two months away from the 2017 H-1B cap season. On April 3, 2017, the United States Citizenship and Immigration Services (“USCIS”) will begin accepting H-1B petitions for fiscal year 2018 (October 1, 2017, through September 30, 2018).

The congressionally mandated H-1B cap allows USCIS to process 65,000 first time H-1B petitions each fiscal year (“regular H-1B cap”) and an additional 20,000 H-1B petitions for beneficiaries who hold a U.S. master’s degree or higher degree (“U.S. master’s cap”). In line with previous years, we expect the demand for H-1Bs to surpass the congressionally mandated cap. As reference, USCIS received over 236,000 H-1B petitions in the first week of April 2016 and almost 233,000 the previous year.

As a result of the high demand for H-1Bs, USCIS has conducted a random lottery, usually during the second week of April, to select the H-1B petitions it will process. USCIS first conducts a lottery to select the 20,000 U.S. master’s cap cases it will process and then conducts the regular H-1B cap lottery. Those not selected in the U.S. master’s cap lottery get a second chance by being included in the regular H-1B cap lottery. By regulation, all petitions received within the first five business days of April must be included in the lottery. For fiscal year 2018, the filing period falls between April 3, 2017, and April 7, 2017.

Which H-1B employees are not affected by the H-1B cap?

• Physicians who have been granted a Conrad 30 waiver of the home country residence requirement
• H-1B employees who were counted in a previous cap and who require either an extension or a new H-1B petition for a new employer
• H-1B employees who will work in H-1B status for “exempt” organizations, such as educational institutions and certain non-profits

Please note that exempt H-1B employees are generally subject to the H-1B cap when changing to a non-exempt employer.

What steps should employers take now to prepare for the H-1B cap?

• Consult with immigration counsel as soon as possible regarding employees who currently hold limited employment eligibility, such as foreign nationals currently employed pursuant to F-1 curricular and/or or optional training employment authorization
• Finalize hiring decisions

While the Trump administration has signed several executive orders relating to immigration, there have been no reports of expected changes to the H-1B cap filing season. We will post an update if any changes are announced.