Employers are reminded to prepare now for the upcoming H-1B cap season and to take the required steps to ensure that petitions are ready to be filed April 2, the first day of this year’s filing period. While the Trump administration has signaled that changes to the H-1B program are in the works, it does not appear likely that the administration will have time to make substantial changes to the H-1B filing or allocation process before fiscal year FY2019 cap season begins.

Volume is expected to be high again this year, in part because of the usual factors such as skills shortages, a strong economy and low unemployment. In addition, many employers may be planning to file H-1B petitions this year because of plans for sweeping changes to high-skilled immigration, including the termination of H-4 work authorization, restrictions to the optional practical training (OPT) program, the increasing scrutiny of the “specialized knowledge” requirement for L-1B visa applicants, the possible renegotiation or U.S. withdrawal from North American Free Trade Agreement, and the possible reorganization of the H-1B lottery in years to come.

This year’s H-1B cap petitions will almost certainly exceed annual caps within the first week of filing, as has happened in each of the past five years. This would trigger a computer-generated lottery for a total of 85,000 spots, including 20,000 reserved for people holding advanced degrees from U.S. educational institutions. Last year, U.S. Citizenship and Immigration Services received 199,000 petitions during the first week of filing. With early planning, employers can ensure that they have enough time to complete their petitions well in advance of the first day of filing.

Here are a few steps employers can take now:

  • Identify H-1B cap candidates: Employers should assess their workforce needs and identify H-1B candidates who will be subject to the cap. The H-1B cap applies to foreign workers who are seeking new H-1B status, such as newly graduating foreign students in the U.S. or overseas workers who are seeking to start work in the U.S. with H-1B status. The cap does not affect individuals who were counted against the cap during the previous six years or those seeking to extend their H-1B status or change employers.
  • Finalize job offers: Employers should work with their recruiters to finalize job offers for potential H-1B employees planning to start work Oct. 1, 2018. Special attention should be given to individuals in the U.S. whose current visa status is due to expire. These may include students in F-1/OPT status, intracompany transferees on L-1B visas, Australian nationals on E-3 visas, and Canadian and Mexican NAFTA professionals on TN visas
  • Complete job descriptions early: Employers should send descriptions of the prospective H-1B employee’s position, including job duties and the position’s minimum qualifications, to their BAL attorney as soon as they are complete. Job descriptions are required for the Labor Condition Application for Nonimmigrant Workers, or LCA, a prerequisite to the filing of the H-1B petition in which an employer promises to pay at least the prevailing wage for the occupation. While the Labor Department normally takes seven days to certify an LCA, it may take longer depending on the offered salary, prevailing wage and specifics of each case.
  • Avoid last-minute document gathering: Employers and individuals should not leave document collection and preparation to the last minute. In particular, foreign academic transcripts, certificates and other educational documents are among the most time-consuming to prepare because official versions must be obtained, translated and evaluated to show that the candidate has earned the equivalent of at least a U.S. bachelor’s degree. In addition, prospective H-1B candidates who do not have a formal degree must gather and provide evidence of sufficient years of experience so that an official educational equivalency document may be prepared.
  • Explore alternatives: Companies are encouraged to explore potential alternatives to the H-1B category with their BAL attorney early in the season to allow enough time to pursue other avenues for workers who do not obtain an H-1B visa. After the close of this cap season, employers must wait until April 2019 to file H-1B cap petitions again.

BAL Analysis: Employers and individuals can maximize their chances of filing within the first week of April by planning early. Employers may wish to consult with BAL about what visa options make sense for particular employees, especially given the changing high-skilled immigration landscape of the Trump administration.

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

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