H-1B Cap Season Is Fast Approaching

February 14, 2018

Looking to hire a skilled foreign worker? Now is the time to act!

The H-1B visa allows companies in the United States to temporarily hire foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor's degree or higher.

The H-1B filing season for 2019 starts on April 2, 2018, for employers who plan to sponsor a full time H-1B employee during the fiscal year—which runs from October 1, 2018, to September 30, 2019.

Typically, the filing window for H-1B visas is open only for one week, as the quantity of petitions received by U.S. Citizenship and Immigration Services (USCIS) quickly outnumbers the amount of available visas. Last year, USCIS reached the cap within seven days, receiving more than 199,000 petitions.

To file an H-1B petition, employers must first obtain a certified labor condition application (LCA) from the Department of Labor (DOL), which contains wage and location information about the proposed employment. Employers should allow sufficient time to obtain a certified LCA, as the process currently takes seven to 10 days. It is highly recommended that employers obtain a certified LCA by March 15, 2018, to ensure the H-1B petition is timely filed on April 2.

Every year, USCIS grants 65,000 new H-1B visas. In addition, USCIS grants 20,000 new H-1B visas for employees with advanced degrees from U.S. universities. H-1B visas are granted for three-year periods to eligible foreign workers, and are renewable for up to six years. Employees with H-1B visas are authorized to work only for the petitioning employer.

USCIS uses a random selection process, or "lottery," to determine which petitions will be accepted for adjudication. Once all the available visas have been granted, no new H-1B petitions will be accepted until April 1, 2019. It is critical for employers to survey their workforce needs well in advance to determine whether they want to hire a foreign national worker who will require an H-1B visa in order to be eligible for employment in the United States.

For example, many employers in the STEM field hire students who are foreign nationals who have recently graduated from U.S. universities. The work authorization associated with student visas is temporary, however, and many employers wish to retain these individuals on a longer-term basis. In order to do so, employers often file H-1B petitions on behalf of those foreign nationals.

The H-1B petition requires information from the employer and the employee, so the parties must work together to prepare the petition. Employers should have all their petition documents ready by March 30, 2018, to be filed on April 2, 2018.

The April 2 filing window does not apply to employees who are extending or transferring their current H-1B status. It also does not apply to "cap-exempt" employers, including government research groups, institutions of higher learning, and nonprofits.

Employers interested in filing an H-1B petition, or uncertain whether the April 2, 2018, filing window applies, should contact counsel promptly. Ballard Spahr attorneys routinely assist employers in filing H-1B petitions and determining what employment-based visas meet their business goals.

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