USCIS announces H-1B cap reached for 5th year in a row but sharp decline signals possible frustrations with the H-1B program

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. 

For updates on all H-1B related news, visit USCIS's H-1B FY2018 site and look for breaking news on our website's news and updates section.

Not selected in the H-1B lottery? Other work visa options to consider

Employers and foreign nationals disappointed in this year's H-1B lottery results may want to consider other work visa options. A few possibilities that are not subject to annual quotas include:

• Cap-exempt H-1B visas - available where the beneficiary will be employed at an institution of higher education (even in some cases with a private company who maintains space on a college or university campus), a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization, or concurrently employed by both a cap-exempt employer and a private, otherwise cap-subject employer;
• TN  visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (are subject to a quota but that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for an entity abroad related as a parent, branch, subsidiary, or affiliate of a U.S. entity;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics. 

Please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to discuss these and other options for your professional employees.

USCIS now accepting H-1B petitions for FY2018

On April 3, 2017, U.S. Citizenship and Immigration Services ("USCIS") began accepting H-1B petitions for Fiscal Year 2018 ("FY2018"). In keeping with the trend of the last several years, USCIS confirmed it expects to receive more than the congressionally mandated cap of 85,000 petitions from employers within the first five business days of April (this year, April 3rd - April 7th). The cap consists of 65,000 H-1B visas available for beneficiaries with at least a bachelor's degree or equivalent and an additional 20,000 H-1B visas for beneficiaries with a U.S. master's degree or higher. After April 7th, the agency will use a computer-generated lottery system to randomly select the 85,000 petitions for adjudication. Last year USCIS received over 236,000 H-1B petitions in the first five business days of April. 

For updates on when USCIS reaches the cap, the lottery, whether there will be a re-start date for premium processing (discussed in further detail below), and other H-1B related news, visit USCIS's H-1B FY2018 site and look for breaking news on our website's news and updates section.

Alternatives to H-1B visa

In light of the increase in demand for H-1B visas over the past several years, employers and foreign nationals should also be aware of other work visa options. A few possibilities that are not subject to annual quotas include:

• TN visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (are subject to a quotabut that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics. 

In addition, employers and foreign nationals may want to consider cap-exempt H-1B visas, which are available if the beneficiary will be employed at an institution of higher education or affiliated non-profit, or concurrently employed by a cap-exempt employer and a private employer. Some universities are assisting in this process by opening up incubator space on-campus, allowing cap-subject employers to station their employees at colleges and universities. This model is known as Global Entrepreneur In Residence ("GEIR") programs, and has become very valuable in the past several years due to the limited number of H-1B visas and the high demand for them. For more information about any of these visa categories or GEIR options, please contact us at info@iandoli.com.   

USCIS will temporarily suspend Premium Processing for all H-1B Petitions

Last Friday U.S. Citizenship and Immigration Services ("USCIS") announced that it will temporarily suspend premium processing for all H-1B petitions starting April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times have increased significantly over the past 18 months from 2-4 months to upwards of 9-12 months, many petitioners are paying to have their cases premium processed to facilitate quicker start dates and international travel. USCIS provided no end date but said this suspension could last up to 6 months thus having a major impact not only on the upcoming annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates that are now in jeopardy. 

This is not the first time USCIS has suspended Premium Processing service. On May 26, 2015, USCIS temporarily suspended premium processing for extension of stay H-1B petitions. This was in response to the high volume of cases USCIS anticipated receiving due to new regulations allowing certain H-4 dependents to qualify for employment authorization. The suspension lasted two months until July 13, 2015.  

The following are examples of how the suspension of Premium Processing will impact foreign nationals and their employers over the coming months: 

• H-1B Fiscal Year 2018 cap-subject petitions for both the regular cap and U.S. Master's Cap: The suspension will limit if/when foreign nationals can travel abroad during cap-gap, as an F-1 student seeking readmission to the U.S. during this period would need USCIS to have approved the H-1B petition and request for change of status.  
• Cap-exempt H-1B petitions: The suspension will affect when H-1B foreign nationals may start working at cap-exempt employers such as universities, teaching hospitals. and non-profit research institutions, and may even impact hiring decisions if the candidate is not eligible to start working for several months while awaiting approval of the H-1B petition. This will impact employers seeking to file both change of status and consular processed H-1B petitions.
• H-1B change of employer petitions: H-1B employees will still be able to "port" or change employers based on the new employer's petition being physically received by USCIS; however, their international travel may be affected once they are beyond the date of employment authorized on their prior H-1B approval notice until the new change of employer petition has been approved.
• H-1B extension petitions: H-1B extension petitions can be filed up to 6 months in advance of a foreign national's expiration. If timely filed, a foreign national's status and work authorization is automatically extended for up to 240 days beyond the expiration date. USCIS has stated they are prioritizing these petitions to ensure adjudication before the 240 days expire. However, foreign nationals will not be able re-enter after traveling abroad once the date on their current H-1B approval notice has passed until their H-1B extension has been approved. 

USCIS has noted they will consider expedited processing requests on a case-by-case basis if the beneficiary/petitioner meets at least one of the notoriously difficult expedited processing criterion which include: severe financial loss to company or person, emergency situation, humanitarian reasons, nonprofit organization whose request is in furtherance of the cultural and social interests of the U.S., Department of Defense or national interest situation, USCIS error, or compelling interest of USCIS.

Please contact Iandoli Desai & Cronin P.C. at info@iandoli.com if you or your organization has any questions regarding timing or if you need assistance in preparing petitions this month.

H-1B lottery rules challenged

A Federal District Court in Oregon has denied the Government's request to dismiss a lawsuit brought by employers and several foreign national professionals challenging the random selection process (also referred to as the H-1B "lottery") used by USCIS to select H-1B petitions for adjudication. The plaintiffs allege that the random selection process is unlawful because it violates the express command of Immigration and Nationality Act ("INA)§214(g) which provides that foreign national professionals "shall be issued visas...in the order in which petitions are filed..."  If the plaintiffs are successful, multi-year waiting lists for H-1B visas may develop, much like those for immigrant visas for the preference categories. The case is Tenrec, Inc. v. United States Citizenship & Immigrations Servs., 2016 U.S. Dist. LEXIS 129638 * (D. Or. Sept. 22, 2016).  A copy of this most recent decision can be viewed here and a full copy of the initial complaint can be viewed here. 

USCIS announces H-1B cap reached for 4th year in a row during the first week of April

U.S. Citizenship and Immigration Services ("USCIS") announced on April 7, 2016 that it had reached the congressionally mandated H-1B cap for fiscal year 2017 ("FY2017").  A few days later, USCIS disclosed the total number of H-1B petitions the agency received for FY2017: 236,000.  As a result, USCIS employed a lottery system to select the 65,000 H-1B visas in the general category cap and the additional 20,000 H-1B visas available to applicants with a U.S. master's degree or other advanced degree obtained in the U.S. 

The number of applications submitted by employers seeking to hire professionals under the H-1B program has increased since 2013 and the lottery process has become commonplace. USCIS confirmed it received 124,000 applicants in FY2014, 172,500 in FY2015, 233,000 in FY2016, and now 236,000 in FY2017. 

For petitions filed via premium processing that were selected in the lottery, USCIS announced it will begin the guaranteed 15-day processing time for those petitions on May 12, 2016. On May 2, 2016, USCIS confirmed it had completed data entry for all FY2017 H-1B cap-subject petitions selected in the lottery. The agency will now begin the process of returning filing fee checks and the petitions not selected in the lottery, typically mailing those packages back to employers beginning in late May or early June. 

Not selected in the H-1B lottery? Other work visas for professionals to consider

Employers and foreign nationals disappointed in this year's H-1B lottery results may want to consider other work visa options.  A few possibilities that are not subject to annual quotas include:

• Cap-exempt H-1B visas - available where the beneficiary will be employed at an institution of higher education (even in some cases with a private company who maintains space on a college or university campus), a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization, or concurrently employed by both a cap-exempt employer and a private, otherwise cap-subject employer;
• TN visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (subject to a quota but that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics.

Please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to discuss these and other options for your professional employees.

USCIS begins accepting H-1B petitions for FY2017

On April 1, 2016, USCIS began accepting H-1B petitions for FY2017. In keeping with the trend of the last several years, USCIS confirmed it expects to receive more than the congressionally mandated cap of 85,000 petitions from employers within the first five business days of April (this year, April 1st - April 7th). The cap consists of 65,000 H-1B visas available for beneficiaries with at least bachelor's degree or equivalent and an additional 20,000 H-1B visas for beneficiaries with a U.S. master's degree or higher. After April 7th, the agency will use a computer-generated lottery system to randomly select the 85,000 petitions for adjudication. Last year USCIS received over 233,000 H-1B petitions in the first five business days of April. For updates on when USCIS reaches the cap, the lottery, start date for premium processing, and other H-1B related news, visit USCIS's H-1B FY2017 site and look for breaking news on our website's news and updates section.

H-1B filing deadline - Act Now!

The Fiscal Year 2017 H-1B visa filing deadline is fast approaching. Given the annual high demand for H-1B visas, H-1B petitions must be filed during the first five business days of April: Friday, April 1, 2016 through Thursday, April 7, 2016. If you are considering filing an H-1B on behalf of a valued employee, we urge you to contact us now to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other possible options for employment-based visas for recent graduates and professionals. 

Please contact us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.