This is a reminder that the Fiscal Year 2018 H-1B filing season is rapidly approaching. H-1B petitions can be filed up to six months before the intended commencement of employment. Consequently, for employment commencing on October 1, 2017 – i.e., the beginning of availability of H-1B quotas for fiscal year (FY) 2018, an H-1B petition may be submitted as early as April 1, 2017. USCIS has not published any guidance regarding whether it will accept petitions on April 1, 2017, which is a Saturday, or whether it will only begin accepting such petitions on Monday April 3, 2017. Until USCIS provides clarifying guidance, April 1, 2017 should be considered as a business day during which USCIS will accept such petitions. Due to time periods required to meet the Department of Labor’s procedural requirements for obtaining a certified Labor Condition Application, which is a prerequisite to the filing of an H-1B petition, in the event you are considering filing an H-1B for the 2018 H-1B Cap Filing Season, if you have not already consulted with immigration counsel it is important to do so as soon as possible.
Last year, on April 7, 2016, only the fifth business day of the filing period, USCIS announced that it had received enough H-1B petitions to reach the statutory cap of 65,000 visas for FY 2017. USCIS also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the masters cap. In all, USCIS received approximately 236,000 H-1B petitions and on April 13, 2016 USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the foregoing caps.
Based on the number of petitions that were not selected in last year’s lottery and the improved economy with more hiring taking place, it is likely that the statutory quota will again be exceeded very soon after the period for filing H-1B petitions opens. As such, employers who desire to hire H-1B foreign nationals subject to the statutory quota should consult with immigration counsel as soon as possible regarding filing on April 3, 2017, or as early thereafter in the cycle as is feasible keeping in mind that USCIS may reject filings received after the fifth business day of the filing cycle if more petitions have been received than are necessary to fill the available quota.
The H-1B visa classification is for temporary employment of foreign professionals in specialty occupations, including but not limited to, information technology professionals, business analysts, financial managers, engineers, architects, allied health professionals such as physical therapists as well as fashion models.
Exemptions from the annual quota may apply in instances of:
- Requests for extensions of stay for current H-1B workers;
- Amendments to H-1B petitions requesting a change in the terms of employment for current H-1B workers; and
- Change of employer petitions for individuals already in H-1B status.
- H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the H-1B cap.
In addition, petitions for new H-1B employment are not subject to the annual quota if the foreign national will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.
Employers desiring to hire H-1B foreign nationals who believe a quota exemption may apply to them should consult with immigration counsel to analyze their situation well before the April 3, 2017 H-1B petition filing season begins.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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