Amid Potential Changes, Employers Prepare for H-1B Filing Season 2018

With changes in late 2017, many employers are gearing up for H-1B season on April 1, 2018. The H-1B visa allows foreign nationals to work in occupations that require at least a U.S. Bachelor's Degree (or foreign equivalent) in a specific academic field. The H-1B visa is one of the most sought after employment visas because it provides a natural spring board to an employer-sponsored green card.

Immigration regulations limit the number of H-1B visas available each year to 85,000 with 20,000 available slots set aside for individuals holding at least a U.S. Master's Degree. The H-1B visa is so popular that USCIS has historically received more applications than there are available visas. As a result, USCIS implements a random lottery system to determine which petitions are adjudicated. The filing period for H-1B visas opens on April 1st each year. This year, because April 1st falls on a Sunday, USCIS will start accepting applications on April 2, 2018. Because the H-1B category is oversubscribed, the filing period is normally open for five (5) business days commencing on April 1, 2018. Last year, USCIS received nearly 200,000 H-1B visa petitions during the filing period.

The Trump administration has indicated a number of changes may be coming to the H-1B program. Potential changes include requiring a test of the labor market to ensure no qualified U.S. workers are available for the H-1B position as a prerequisite to filing. Additional changes may include giving highly educated or highly paid foreign nationals preference in the H-1B lottery.

Certain employers-including institutions of higher education and entities that are affiliated with institutions of higher education-as well as current H-1B visa holders seeking to extend their status are exempt from the annual H-1B cap. Last February, USCIS announced it would temporarily discontinue the Premium Processing Service for all H-1B petitions from April 1st until mid-September. As a result, H-1B cap-exempt filers scrambled in March to take advantage of the guaranteed fifteen (15) day expedited adjudication to avoid work and/or travel plan disruption.

With the April 1, 2018 filing deadline looming and the potential for another suspension of Premium Processing, employers should assess their workforce needs now. H-1B petition preparation takes time, as certain regulatory steps must be followed to ensure a successful filing.

Employers should contact counsel now to assess potential H-1B filing strategies and plan for the upcoming H-1B filing period.

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