U.S. Citizenship and Immigration Services ("USCIS") announced on April 7, 2017 that it had reached the H-1B cap for fiscal year 2018 ("FY2018"). The congressionally mandated cap is set at 65,000 H-1B visas plus an additional 20,000 H-1B visas available to foreign nationals with a U.S. Master's degree or other advanced degree obtained in the U.S.
As a result of reaching the annual cap within the first five business days of April, USCIS ran a computed-generated lottery system. Per its usual procedure, USCIS first ran the U.S. Master's cap; those not selected in the first run were then placed in the regular H-1B cap for the second random lottery. USCIS then announced on May 3, 2017 that it had completed data entry for all FY2018 H-1B petitions. This means employers and attorneys can expect to see the agency cash filing fee checks and send receipt notices for petitions that were selected in the lottery. Once all the receipt notices are issued, USCIS will begin the process of returning petitions not selected in the lottery (including the uncashed filing fee checks). In its most recent announcement, USCIS indicated it is unable to provide a definite time frame for returning those petitions but typically employers can expect them to be returned in late May or early June.
The total number of H-1B petitions received for FY2018 was 199,000 which is down 15% from the previous two years. By comparison, USCIS has over the past five years received 124,000 in FY2014, 172,500 in FY2015, 233,000 in FY2016 and 236,000 in FY2017. It is difficult to state with certainty why the decline occurred this year. Are employers frustrated with the high cost but low chances? Are foreign students accepting offers of employment abroad or not enrolling in U.S. universities as they did previously because securing work authorization after school is so difficult? Is it because the new STEM extension now allows for up to 2 additional years of OPT work authorization for certain graduates and employers are forcing foreign nationals to utilize this more cost effective yet short-sighted solution? Or is the U.S. slipping in global competitiveness to more immigration-friendly countries? The reason remains to be seen but Iandoli Desai & Cronin will be watching closely next year to see if the numbers decline again or if FY2018 was just a fluke.