There is Still Time to Prepare for H-1B Cap Filings.

Now is the time of year when employers should identify any current or future employees who may require a cap-subject H-1B petition to work in the U.S. Under current rules, the first day to file H-1B cap petitions is April 1, 2019, for an employment start date of October 1, 2019.

Last year, USCIS received more than 190,000 H-1B cap-subject petitions, far surpassing the 85,000 visas available, and the H-1B cap petition quota was reached during the first week of filing for the sixth consecutive year. We anticipate that the H-1B quota will be reached quickly again this year. This means that employers should plan to file all H-1B cap petitions by April 1, 2019. Prior to filing any petitions, employers must work proactively with counsel to assess cases for eligibility, obtain credential evaluations, and secure Labor Condition Applications from the U.S. Department of Labor.

With an increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to take appropriate steps to ensure timely preparation and filing of cases.

Who Should Be Considered for an H-1B Cap Petition?

Potential beneficiaries include, but are not limited to:

  • New hires from overseas
  • F-1 students completing a qualifying course of study or working pursuant to Optional Practical Training
  • Some L-1 visa holders
  • TN, E-3 and other nonimmigrant status holders who wish to change to H-1B status in the coming year
  • H-4 Dependent EAD holders. The Administration has indicated that it intends to eliminate work authorization eligibility for the H-4 spouses of certain H-1B visa holders. Employers may wish to consider filing cap petitions for these employees. In addition, employers may wish to evaluate options for L-2 or E dependent EAD holders
  • Certain DACA recipients

What H-1B Petitions are Not Subject to the Cap?

Certain H-1B petitions are not counted against the annual cap, including:

  • Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
  • Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

We will be closely monitoring all proposed changes to policy and procedure and will provide updates. If you have any questions about this alert or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law, Collaborative Divorce & Mediation.

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