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Legal Updates

It’s That Time Again: FY2018 H-1B Filing Is Almost Here

Beginning April 3, 2017 (as April 1 falls on a Saturday this year), U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting petitions for H-1B visas with start dates of October 1, 2017, the beginning of fiscal year 2018 (“FY2018”).

Based on the unprecedented number of H-1B petitions – over 236,000 – submitted during last year’s filing window, it is expected that the 65,000 annual cap for H-1B visas will be reached shortly after the upcoming filing window opens on April 3, 2017. If so, USCIS will once again make use of a computer-generated random selection process (known as the H-1B lottery), into which all petitions received during the first five business days beginning on April 3 will be entered.

Therefore, employers who intend to use the H-1B program to hire foreign workers for FY2018 should begin planning now, to ensure that they are ready to file within this short window.

H-1B Visas

H-1B visa petitions are filed on behalf of foreign nationals who work in “specialty occupations” – those that require the application of highly specialized knowledge and completion of a Bachelor’s degree or higher in the specialty occupation. Common examples of such occupations include, but are not limited to, software engineers, accountants, teachers, and physicians.

The types of individuals for whom employers commonly file H-1B visa petitions include:

  • Individuals residing outside of the United States who are subject to the annual H-1B cap (and who do not fall within the “remainder option” exception);
  • F-1 student status holders who need H-1B status to continue working after their optional practical training has expired;
  • Individuals who currently hold “TN” status under the North American Free Trade Agreement (“NAFTA”) and need to commence the green card process;
  • L-1s who want to pursue green cards and need the ability to extend their work authorization beyond six years;
  • J-1s who are not subject to the two-year home residence requirement or have waived this requirement, and who have limited practical training time remaining and/or live outside the United States; and
  • H-4s who are seeking H-1B status in order to work in the United States.

Notably, the annual 65,000 cap on H-1B visas does not apply to H-1B visa transfers or extensions, or to foreign nationals working for educational or non-profit research organizations that are exempt from the cap.

Also, 20,000 additional visas (commonly referred to as “advanced degree” H-1B visas) will be made available during FY2018 to foreign nationals who hold advanced degrees from U.S. academic institutions. Employers should consider using this category for candidates who meet the educational requirements of the advanced degree H-1B. However, employers should not file multiple H-1B applications for a single employee under different filing categories, as this would violate the filing rules.

Next Steps For Employers

We strongly encourage employers to begin preparing new H-1B petitions promptly, as the annual allotment of visas is likely to be exhausted during the first five days of filing, beginning on April 3, 2017.

It is important to note that the H-1B visa program has come under scrutiny by the new Administration. Although we expect this year’s program to move forward without substantial change, we will continue to monitor the situation closely. In addition, legislators have recently introduced bills into Congress that, if passed, would tighten the requirements for the H-1B program. Therefore, employers should be aware that changes to the H-1B program may well occur in the future.

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Please feel free to contact us if you have questions or require assistance with the H-1B filing process. The Firm regularly assists employers with preparing and processing H-1B and other employment-based non-immigrant and immigrant visa applications, and we would be happy to help.