Musings on Immigration Blog
All Human Resource people know that April not only brings showers, but it also brings the H-1B lottery! While the Trump administration has floated the idea of a preregistration system for the H-1B lottery (savings companies thousands of dollars in NOT preparing unaccepted applications), there is no indication that such a regulation will be published and effective by April 2, 2018, the first day of the five day H-1B lottery acceptance period.
Without a change in the regulations, H-1B applications will have to be prepared for anyone who seeks NEW H-1B status as of fiscal year 2018. Best practices suggest that you begin the process now of identifying employees who may need this application filed on their behalf. We should begin the process of preparing the H-1B applications no later than March 1, 2018, to avoid a massive rush (and running out of time). And, considering the Trump administration’s new standards for H-1B visas (without any corresponding notice or regulatory change), it will take longer to prepare these applications with the goal, not only of an approval but of avoiding the dreaded “Request for Evidence.”
Remember that the H-1B quota is capped at 85,000 visas, divided between 65,000 visas for foreign nationals with a bachelor’s degree from a U.S. or foreign university, and 20,000 allocated for foreign nationals who have completed at least a master’s degree from a U.S. university.
Given our past experience in the H-1B “lottery,” we believe that the H-1B 2019 cap will be met within the first week of filing (April 2 to April 6, 2018) due to the pent-up demand and the number of re-applications from previous years. Proper planning now will avoid an emergency in April! If you miss out the filing deadline in April, absent USCIS recognizing that perhaps they are not giving out all available H-1Bs, there will be no new H-1B visas available until October 2019. Do not count any increase in H-1Bs under the current Congress or Administration.
By way of preparation, employers should take a look at their current employees working under the F-1 Optional Practical Training (OPT) program (even those with STEM extensions in place), who need to be transitioned to H-1B status after its conclusion.
We also anticipate some Congressional changes in the H-1B program, probably before April 2018, which will most likely affect dependent employers, and will likely result in a higher minimum wage.
Also, USCIS has announced that it is NOT going to challenge the ability of current H-1B visa holders to extend their H-1Bs while waiting for the priority date become current (they realized they would lose that case in federal court, again).