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Apr 18, 2017

H-1B Update: Annual Cap Reached with Fewer Than Expected Numbers, President Trump to Commence Administrative Reforms

Jonathan A. Grode

The past few days has generated a flurry of news regarding the H-1B specialty occupation visa, including some interesting developments that surprised many in the U.S. immigration realm.  Our readers should be aware of the following three main developments:

1. The annual cap was reached and the lottery completed. While expected, USCIS announced that the Fiscal Year 2018 H-1B cap was reached in the first week of filing. Each fiscal year the agency is afforded 85,000 H-1B petitions that can be approved under its congressionally-mandated cap. A total of 20,000 of such visas are awarded to beneficiaries who have graduated a U.S. institution of higher education with a Master’s Degree or higher. As has been the case for the past five years, all available numbers were used at the earliest possible movement. Accordingly, USCIS conducted a computer-generated random selection process (i.e. a lottery) to select petitions to be adjudicated. The unselected petitions will be returned to employers, together with their uncashed filing fees. 

The waiting game continues. Because USCIS has suspended premium processing for all H-1Bs that could be cap-subject, petitioners may be waiting several weeks to receive paper receipt notices. In our experience such receipts will trickle in, somewhat unpredictably, starting this week and ending in mid-May. Independently of waiting, Petitioners can also confirm the acceptance of the submission by reviewing the back side of the filing fee check. USCIS cashes the accepted petitions’ checks and prints a receipt number under the endorsement. While the timing of confirmation is less predictable, it generally offers a faster confirmation of acceptance compared to awaiting the receipt notice by post.

2. USCIS received significantly fewer petitions than last year. For the past five years, as the U.S. economy has rebounded from the 2008 Financial Crisis and ensuing recession, H-1B filings have increased every year.

 

Fiscal Year

2018

2017

2016

2015

2014

Number of Filings

199,000

236,000

233,000

172,500

124,000

 

Given the relatively strong economy, most U.S. immigration professionals were expecting this year’s numbers to outpace last year’s – yet filings dropped to their lowest levels since April 2014. Potential reasons could be that employers are seeking to use the visa less as a result of previous experience with the lottery, H-1B related criticism from government officials, or an increase in hiring overseas.

3. President Trump is to sign an Executive Order Reviewing the H-1B Visa Regulations. As reported by many media outlets yesterday, President Trump is soon expected to sign an executive order calling for the Department of Homeland Security to review its H-1B regulations as part of his so-called “buy American, hire American” campaign rhetoric. 

Citing unnamed Administration officials, The New York Times reports that USCIS will aim to “mak[e] it harder for technology companies to recruit low-wage workers from foreign countries and undercut Americans looking for jobs.” The administration further “seeks changes to the program that would require applicants and their potential employers to demonstrate that the visas are going only to ‘the most highly skilled workers’ in their fields.”  How any regulatory reform will work out remains to be seen, and would be potentially subject to judicial challenge as limiting the H-1B to “the best and brightest” would essentially duplicate the O-1 visa.

We will keep our readers apprised of all further developments. For more information regarding the H-1B Specialty Occupation Visa, and to discuss strategies for hiring workers not selected in the annual cap, contact us today.

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