On April 7, 2017, United States Citizenship and Immigration Services (“USCIS”) confirmed that the agency has received the numerical limit for H-1B petitions subject to the 2018 fiscal year H-1B cap. The agency also confirmed receipt of more than the 20,000 limit on “U.S. Master’s Cap” H-1B petitions. USCIS has not yet provided information on the total number of cases they received.
USCIS will employ a randomized selection process, also known as the “H-1B lottery”, to determine which petitions out of the total number received will be processed under the numerical limits. USCIS will first conduct a lottery for the 20,000 U.S. Master’s Cap petitions. USCIS will then run a second lottery to select which H-1B cap-subject petitions will be processed out of the remaining U.S. Master’s Cap petitions and “Regular Cap” petitions.
USCIS has not officially announced when the H-1B lottery will be conducted but did state at an AILA conference that the lottery will be conducted next week. Once the lottery is conducted, USCIS will begin to issue receipt notices. Since receipt notices will be mailed it will likely be several weeks at best and potentially longer for all receipt notices to be generated, mailed, and then received. After all the receipts are issued, USCIS will then start to send rejected packages. Rejected cases will be returned with uncashed filing fees.
We will provide an update when more information is available.
We will not have specific information on any H-1B visa petition filing until a receipt or rejection is received.
As mandated by statute, USCIS may grant up to a maximum of 65,000 new H-1B visas per fiscal year with certain exceptions.
USCIS may grant up to 20,000 H-1B visas separate from the 65,000 limit for beneficiaries who have earned a Master’s degree or higher from a United States institution. In addition, some beneficiaries may be exempt from the H-1B cap if they will be working for certain non-profit higher education institutions, government or non-profit research organizations, or related entities.
Jackson & Hertogs will continue to monitor for updates on the FY 2018 H-1B Cap. For more information on the H-1B visa, please visit our guides at this link.
Please note that USCIS will continue to accept and process H-1B visa petitions that are exempt from the cap and are filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers;
- Allow current H-1B workers to work concurrently in a second H-1B position; or
- Work for exempt employers (universities and associated not for profit research institutes).
Premium Processing Suspended: Note that on March 3, 2017, USCIS announced that the agency would suspend its Premium Processing service for all H-1B petitions filed on or after April 3, 2017. This suspension impacts all H-1B filings.
The H-1B regulations allow for employment based on the filing of petition extensions to either continue working for the current employer or to change to new employment. The suspension of premium processing is inconvenient but H-1B employees and their employers can use the various receipt rules.
For extensions to continue working with the same employer, the individual employee will have 240 days of work authorization starting on the date that the current I-94 expires. There will be no interruption in work authorization. Individuals may encounter difficulty in renewing driver’s licenses after the expiration of the I-94 but remain work authorized and authorized to remain in the United States. International travel will also need to be curtailed until the extension is approved after the I-94 expiration date.
For change of employer petition filings, the employee can start working for the new employer once the properly filed petition is received by USCIS. We do understand that some individuals have been uncomfortable porting employment before the H-1B change of employer petition is approved. At this time, there are no options to expedite a change of employer petition. Individuals being sponsored for a change of employer petition will need to discuss their proposed start date with the hiring petitioner.
While we do expect USCIS to lift the suspension on premium processing, they intimated at an AILA meeting that there will likely be some limits on its use. The Agency has determined that with more and more reliance on premium processing that regular processing times have been impacted.
