Time to Plan for the H-1B Cap

17. Jan. 2018

USCIS will begin accepting H-1B cases subject to the annual cap on Monday, April 2, 2018.

It is highly likely that all cap-subject H-1Bs for the entire year will be fully-subscribed by the fifth business days of April, as it was in each of the last 5 years.  If so, all cases received during the first 5 business days of April will undergo a random selection process to determine which cases will be processed and which will be returned.  This is often referred to as the “H-1B lottery.”

What should companies do now?

If you have not already done so, send an email to your ILG attorney or paralegal listing the individuals your company will be petitioning for this year.  Include each beneficiary’s name and email ID so that ILG can start sending case initiation emails.

If you have not identified the beneficiaries, but know the job title(s) and worksite(s) your company will be filing for, send an email containing the approximate number of petitions you plan to file for each position and worksite, and the wage range for each position.  With this information, ILG will prepare the Labor Condition Applications (LCA) in advance.  The LCA is a required document for every H-1B and must be prepared in advance of filing an H-1B.

F-1 Status Employees

Because your company may have hired F-1 graduates without utilizing ILG’s service, we may not know of some or all of your F-1 hires.  Therefore, be sure to list F-1 employees in your email to your ILG attorney or paralegal.  We need their names and email IDs to initiate their H-1B case.

Finally, even for F-1 employees who are eligible for OPT work authorization beyond October 2019, we highly recommend petitioning for H-1B this April in order to have multiple tries in the “H-1B lottery”.  Demand for H-1B will exceed availability not only this year but also in the foreseeable future.

Considerations for this Cap Season

The Trump administration has increased scrutiny for H-1Bs.  As ILG assesses H-1B cap cases this year, we will pay particular attention to whether the wage offered is compatible with the level of the position and the level of the employee (e.g., entry, mid or senior level).  ILG will also assess whether certain entry-level occupations are suitable for H-1B (e.g., H-1B for an entry-level “Computer Programmer” is much more likely to be denied compared to an H-1B for an entry-level “Software Engineer”).

For H-1B beneficiaries that work at client sites, it will be more important than ever to document valid “employer-employee relationship.”

Finally, in light of the likely rescission of H-4 EADs, employers should file H-1B change of status petitions for essential H-4 employees.