By Loan T. Huynh, Robert D. Aronson, Laura J. Danielson & Debra A. Schneider
USCIS will start accepting H-1B petitions for fiscal year 2019 (October 1, 2018-September 30, 2019) on April 1, 2018. Only 65,000 H-1B’s are issued each fiscal year, with an additional 20,000 H-1B’s for graduates of U.S. master’s degree programs.) As in recent years, we expect the H-1B cap to be reached within a week. Last April, USCIS received just under 200,000 H-1B petitions in the first week, 36,000 fewer than the year before. While we would expect that number to decline further this year as a result of stricter adjudication standards, there will still likely be a lottery for those applications received within seven days of April 1, 2018, once USCIS receives more than 65,000 applications. In the past the lottery was a random selection process of the H-1B applications received, but we cannot say for certain whether USCIS will follow the same approach. It is looking closely at wages paid H-1B workers and this may alter lottery determinations as well as approvals. Those applications chosen for adjudication will be assigned an H-1B cap number. It is possible, as happened last year, that premium processing will again be canceled so employers should prepare for H-1B’s to take a while to be adjudicated.
Employers who have foreign national employees/candidates who need H-1B sponsorship should start the process soon in order to ensure that their applications are filed and received on April 1, 2018. The H-1B is available to employers seeking to hire a foreign national worker with at least a bachelor’s degree or equivalent in a relevant field for a position that requires a degree in that field (also known as a specialty occupation). The H-1B cap applies to new H-1B petitions filed for foreign workers who have not had an H-1B petition filed and approved within the past six years.
Identifying Candidates Who Needs H-1B Sponsorship
To avoid missing out on filing an H-1B petition under Fiscal Year 2019, employers should identify candidates who need sponsorship and are in professional positions. Some candidates may already be currently employed and working under temporary work authorization. Below are examples of cases where an employee or job candidate should be considered for H-1B sponsorship:
- Students who are working under Optional Practical Training (OPT) or Curricular Practical Training (CPT) will need H-1B sponsorship to be eligible to be employed in the US once their OPT or CPT expires. STEM OPT, which grants an additional two years of practical training to those in the fields of science, technology, engineering or math, is being considered for elimination, so it is best to apply immediately for anyone on OPT;
- Candidates currently in H-1B status with an H-1B cap exempt employer (institutions of higher education or a related or affiliated non-profit entity, nonprofit research organizations, or governmental research organizations) who are seeking employment opportunities with cap subject employers;
- Candidates who are in other nonimmigrant work status such as TN, H-3, H-2, O-1, and J-1 but need to change their status to H-1B; and
- H-4 spouses, whose work authorization may possibly be rescinded this year under the Trump administration; employers should consider applying for H-1B status for such individuals to avoid sudden loss of employment.
Employers must also be careful to avoid allegations of discrimination on account of citizenship or national origin, so the questions they ask to elicit relevant information are critical. We have seen changes this past year under the Trump administration regarding the standards of H-1B adjudications, with a doubling of Requests for Evidence and an increase in denials. There are many rumors of further policy, regulatory and legislative changes that could be made to the program. We would expect most changes to be policy-related, as there are strict rule-making procedures that need to be followed before regulations can be amended. Any changes to actual H-1B laws would require congressional approval. As always, we will keep you updated as any changes occur. In the meantime, preparation for the H-1B season should continue under the current rules.
For further assistance, please contact Fredrikson & Byron’s Immigration Team at 612-492.7648.
