H-1B cap season details confirmed

U.S. Citizenship and Immigration Services has confirmed important details about the upcoming H-1B cap season, in light of concerns that proposed changes to H-1B visas by the Trump administration could affect the filing season, which begins April 2. The agency’s Service Center Operations Directorate provided the information to the American Immigration Lawyers Association.

Key points:

• Procedures will remain the same as last season. This means that there will be no preregistration system and if the number of petitions exceeds the numerical caps, a lottery will determine which petitions are selected for processing.
• The agency is likely to impose a “short” suspension of premium processing services for H-1B cap-subject petitions.
• Premium processing is not expected to be suspended for non-cap H-1B petitions.

Background: In December, the Department of Homeland Security released its 2018 regulatory agenda, which included changes in how H-1B cap petitions are selected, such as an electronic preregistration system. Other agenda items include changes to the definition of “specialty occupation,” qualifying criteria and minimum salaries paid to H-1B employees in order to protect American workers.

BAL Analysis: Employers should expect a lottery selection process similar to those in previous cap seasons. Businesses should assume that premium processing will not be available for H-1B cap-subject petitions at the start of filing season and factor that into their schedules. Although it is not clear how long the suspension will last, it will presumably be shorter than the six-month suspension last year. Unlike last season, premium processing for non-cap H-1B cases will not be interrupted. BAL is closely following any changes to H-1B cap season and will report any developments, including regulatory proposals that could affect how petitions are adjudicated this summer.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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