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 four years, however, the H-1B cap has been met by April 7th, in the first week that USCIS accepted new H-1B petitions (see Legal Updates, USCIC Exhausts the H-1B Statutory Cap for FY2017, USCIS Reaches H-1B Statutory Cap for FY2016, USCIS Reaches H-1B Statutory Cap for FY2015, and USCIS Reaches H-1B Statutory Cap for FY 2014). 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 FY2018 may be filed (received by USCIS) between Monday, April 3, 2017 and Friday, April 7, 2017. 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. Normally, it takes two or more weeks to obtain the certified LCA. Employers planning to file cap-subject H-1B petitions beginning on April 1st should submit the prerequisite LCA applications as soon as possible. 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, 2017 (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 border security fee has been reinstituted. A $4,000 fee must be paid for a petition requesting new H-1B status if the H-1B petitioner employs 50 or more employees in the US with more than 50% of its US employees under H-1B, L-1A, or L-1B nonimmigrant visa statuses.

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.