Tara L. Vance is a partner in Holland & Knight's New York office
New H-1B visa petitions for Fiscal Year (FY) 2019, which begins Oct. 1, 2018, will be accepted for filing starting on April 1, 2018, which means employers should have their H-1B visa petitions ready to be sent to U.S. Citizenship and Immigration Services (USCIS) no later than March 31, 2018.
Because of the continued limited number of H-1B visa petition approvals that are statutorily available for the upcoming fiscal year, employers need to act quickly in order to have a chance to have their new H-1B visa petitions processed by the USCIS and counted against the H-1B visa cap. It is recommended that employers act now and have their H-1B visa petitions prepared, finalized and ready to be sent to the USCIS by March 31, 2018, for receipt on the first day submissions are accepted: April 1, 2018. It is still expected that the USCIS will receive more new H-1B visa petitions than available under the cap.
H-1B Visas
H-1B visas are the most sought-after temporary work visa for foreign nationals wanting to work in the U.S. In general, in order to qualify for an H-1B visa, 1) the foreign national must have a U.S. bachelor's degree, or hold at least the equivalent, in a professional discipline, 2) the job position in the U.S. must require someone with such educational background, 3) the proposed salary must at least equal the prevailing wage rate of similarly employed individuals and 4) there must be an H-1B visa available under the cap.
H-1B Cap
A total of 65,000 new H-1B visas are available for FY 2019, of which 6,800 are set aside for citizens of Chile and Singapore under free trade agreements. In addition, 20,000 new H-1B visas are available for foreign nationals who have at least a master's degree or higher in a professional discipline from a U.S. institution.
Last year, the USCIS received approximately 199,000 new H-1B visa petitions, and it is expected that this year the USCIS will again receive more new H-1B visa petitions than can be granted under the cap. As a result, the USCIS will assign each new H-1B visa petition a number and then randomly select petitions to be processed through a lottery. Only those petitions selected in the lottery will be adjudicated, and the remaining will be returned to the sponsoring employers.
In order to give employers the best chance for having their new H-1B visa petitions filed within the deadline, being chosen for processing and being counted against the cap, we recommend that all H-1B visa petitions be prepared as soon as possible.
New H-1B visa petitions can be filed six months prior to the requested date of validity. Because the U.S. Department of State's fiscal year begins each Oct. 1, the first day of filing for new H-1B visas is April 1 of each year. Because the USCIS receives far more H-1B visa petitions than it can process under the annual cap, the cap is hit almost immediately every year. As a result, April 1, 2018 should be considered as the mandatory filing deadline.
Who Is Exempt?
The H-1B visa cap applies only to new H-1B visas. Foreign nationals who currently have and have maintained H-1B visa status and want to either request an extension of their current H-1B visa status or amend their current H-1B visa status to change employers are not subject to the H-1B visa cap. Additionally, certain institutions of higher education, nonprofit organizations or entities associated with an institution of higher education, nonprofit research organizations and governmental research organizations are generally not subject to the H-1B visa cap, although any foreign national wanting to change employers from a cap-exempt employer to an employer subject to the cap is subject to the upcoming H-1B visa cap.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
