H-1B visas are popular with employers because of their broad applicability, but US Citizenship and Immigration Services (USCIS) approves no more than 85,000 new H-1Bs for each fiscal year (October 1st to September 30th). The 85,000 available new H-1B visas are allocated as follows:

The limited availability of H-1B visas is known as the H-1B cap. For more information on the H-1B cap and its impact on employers, see Practice Note, The H-1B Nonimmigrant Visa Classification: The H-1B Cap.

Employers may begin requesting new H-1B visas six months (April 1st) before the fiscal year starts on October 1st, and may continue to file cap-subject H-1B petitions until the annual cap is reached. In the past five years, however, the H-1B cap has been met by April 7th, in the first week that USCIS accepted new H-1B petitions (see, for example, Legal Update, USCIS Reaches the H-1B Statutory Cap for FY2018). Therefore, to maximize their access to the supply of new H-1Bs, employers with foreign workers requiring H-1B status to begin or continue working for the employers should file the H-1B petitions as early as possible. Petitions for new H-1B visas in FY2019 may be filed (received by USCIS) between Monday, April 2, 2018 and Friday, April 6, 2018. If USCIS receives enough qualifying H-1B petitions to satisfy the H-1B cap during the filing period, it will:

Before filing the H-1B petition, employers must obtain a certified Labor Condition Application (LCA) from the DOL. For more information on LCA requirements, see Practice Note, The H-1B Nonimmigrant Visa Classification: Labor Condition Application.

If approved, the H-1B visa approval allows the foreign worker to be employed by the petitioning employer in the job described in the H-1B petition no earlier than October 1, 2018 (as requested in the petition) for up to three years, with the possibility for further extensions or amendments to the H-1B status (see Practice Note, The H-1B Nonimmigrant Visa Classification: Validity Period of H-1B Approval).

Employers should also be aware that the H-1B visa classification continues to be the object of criticism and stringent review by the current administration. Policy changes instituted during 2017 include scrutiny for entry level jobs and protecting US workers from discrimination favoring foreign workers.

USCIS announced on March 20, 2018 that it is temporarily suspending premium processing for all FY 2019 cap-subject H-1B petitions beginning on April 2nd. USCIS expects the suspension to last until September 10, 2018. USCIS has created a special webpage for the H-1B cap filing season, where employers and their counsel can find updated information on the process.

Practical Law has a collection of resources to help employers develop strategies for preparing and filing H-1B petitions for their foreign workers. For more information and links to these resources, see The H-1B Visa Classification Toolkit.

Employers that are unable to file an H-1B petition, or are unsuccessful in obtaining H-1B status for their foreign workers, may find alternative nonimmigrant visa status options in Practical Law's Employer Options When H-1B Visas Are Not Available Checklist.