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Preparing for the Upcoming H-1B Cap Season; DHS’ Plans on Significant Changes to H-1B

On April 2, 2018, USCIS will begin accepting H-1B, Petitions for Nonimmigrant Workers, subject to FY 2019 H-1B cap. This means that employers have less than three months to prepare for the filing period which will last for five business days, from April 2 to April 6, 2018.

Considering the high number of applications received in the previous years (approx. 200,000), the FY 2019 filing season is expected to be in high demand as well. As a reminder, the annual H-1B quota is 85,000, with 20,000 being reserved for nonimmigrants who hold master’s degrees from U.S. accredited universities.

In order to prepare for the submission of H-1B application, contact your attorneys at Williams Global Law, and with their help follow these steps:

  • Identify employees who need H-1B sponsorship. Due to the fact that the H-1B cap “lottery” becomes available only once per year, it is crucial to identify all employees who will need sponsorship and determine their eligibility. If you have employees currently working on optional practical training (OPT), and their OPT expires after April 2018, you must file their H-1B application before the deadline.

  • Collect supporting documentation. With the help of our attorneys, gather company documentation, as well as evidence needed from H-1B candidates, such as degrees, academic transcripts, family information etc.

  • Be prepared for the possibility of receiving an RFE. In 2017, USCIS challenged an unusual number of H-1B applications, which was up to 44% comparing to the year before. This year, it is expected that applications will be reviewed with the same high level of scrutiny, especially those applying for entry-level positions and wages. If you get a request for evidence (RFE), our attorneys will work with you to comply and send the documents requested, but be prepared for the delay with the approval.

  • Be prepared for DHS and DOL regulation changes. Based on our experience from last year, it is possible that DHS and DOL may provide last-minute changes to policies related to H-1B visas. Currently, DHS is preparing various proposals which may affect this year’s cap applications. These proposals include:

  • Increasing the H-1B minimum wage requirements;

  • Creating a priority system for allocation of H-1B cap numbers to the most highly paid and highly skilled professionals;

  • Pre-registration of H-1B cap lottery numbers and further submission of cap petitions only after they have won cap numbers;

  • Termination of the employment authorization program for H-4 spouses;

  • Increasing USCIS fees for nonimmigrant petitions.

In most cases, the proposed rules will not take effect until the agency completes the regulatory approval process, which usually takes several months or more. While the impact of the proposed changes on filing procedures in the FY 2019 H-1B cap season is not certain yet, employers should be aware of the possibility of the changes to appear.

#H1B #ExecutiveOrder #2018

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