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USCIS Reaches the H-1B Statutory Cap for FY2018
Practical Law Legal Update w-007-4882 (Approx. 5 pages)
USCIS Reaches the H-1B Statutory Cap for FY2018
by Practical Law Labor & Employment
| Law stated as of 17 Apr 2017 • USA (National/Federal) |
United States Citizenship and Immigration Services (USCIS) announced that as of April 7, 2017, it has received a sufficient number of new H-1B visa petitions to reach the statutory cap for fiscal year 2018 (FY2018). USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption (commonly called the "master's cap").
On April 7, 2017, United States Citizenship and Immigration Services (USCIS) announced that it has received:
- A sufficient number of new H-1B visa petitions to reach the statutory cap for fiscal year 2018 (FY2018). The statutory cap is 65,000 H-1B visas, minus up to 6,800 H-1Bs allocated to citizens of Chile and Singapore under the US free trade agreements with those countries.
- More than 20,000 H-1B petitions filed on behalf of individuals exempt from the cap under the advanced degree exemption (commonly called the "master's cap").
USCIS will reject any H-1B petitions received after April 7, 2017 that are subject to either the FY2018 cap or the master's cap. For more information, see USCIS: H-1B Fiscal Year (FY) 2018 Cap Season.
This is the fifth year in a row that the H-1B statutory and advanced degree caps were exhausted during the initial five-day filing period. It continues the trend that existed before the economic recession began in 2008, with a limited number of employers able to secure H-1B status for employees and a large number of employers foreclosed from the H-1B category for 18 months or more.
All petitions received between April 1 and April 7, 2017 will be entered into a computer-generated random selection process, known as the lottery. USCIS will first randomly select the 20,000 petitions for the master's cap. Any master's petitions not selected will be part of the random selection process for the statutory cap of 65,000 for FY2018. USCIS did not yet announce the date of the lottery, and is not currently providing the total number of petitions received. USCIS previously announced that premium processing of all H-1B petitions is suspended for up to six months (see Legal Update, USCIS Temporarily Suspends Premium Processing for H-1B Petitions Starting April 3rd).
For information related to FY2018 H-1B filings, see Legal Update, H-1B Cap Season for FY2018 Begins April 3rd.
USCIS will continue to accept petitions that are otherwise exempt from the cap. H-1B petitions exempt from the cap include:
- Amendments, extensions, and transfers of existing H-1B status, where the worker has previously been counted against the cap.
- Petitions by:
- government research organizations;
- institutions of higher education;
- nonprofits related to institutions of higher education; and
- nonprofit research organizations.
A new government focus on H-1B employers has emerged in the past week:
- By USCIS announcing targeted site visits of H-1B employers and a new email address to submit tips about possible H-1B abuse (see Practice Note, Handling USCIS Fraud Detection and National Security (FDNS) Site Visits: H-1B Petitions and Labor Condition Application (LCA) Compliance).
- By USCIS rescinding an earlier policy memorandum finding that entry level computer programmers qualify for H-1B status as specialty occupation workers in favor of a more case-by-case review of a position's requirements (see USCIS Policy Memorandum PM-602-0142).
- By a news release from the DOJ Immigrant and Employee Rights Section, which enforces the anti-discrimination provisions of the Immigration Reform and Control Act (IRCA), cautioning employers that hire H-1B workers about discriminating against US workers.
- By a Department of Labor news release describing a plan to protect US workers from discrimination under the H-1B program by:
- rigorously enforcing the DOL's investigation authority under the H-1B visa category, including greater coordination with other federal agencies like USCIS and DOJ;
- considering changes to the LCA process to provide greater transparency; and
- engaging stakeholders to find other avenues to protect US workers.
For more information on the H-1B cap, see Practice Note, The H-1B Nonimmigrant Visa Classification.
Update: On April 17, 2017, USCIS announced that it completed basic intake and the random selection process of the more than 199,000 H-1B petitions submitted during the April 1 to April 5 filing period. Petitions that were not selected in the lottery will be rejected and returned to the petitioner or the petitioner's counsel if a G-28 notice of representation accompanies the petition. USCIS will accept petition fees only if the petition is accepted in the lottery, or for a rejected petition if duplicate petitions were filed.
While the number of petitions received this year fell by approximately 36,000 from those received for FY2017 in April 2016, USCIS still received well more than double the number of petitions to available H-1B visas. This continuing pressure on the H-1B nonimmigrant visa classification presents a significant issue for employers that rely on the H-1B to hire and continue the employment of foreign professionals. Employers should identify workers who need and cannot obtain H-1B status as soon as possible, and identify a strategy for each worker. For more information, see Employer Options When H-1B Visas Are Not Available Checklist.