Planning for the Upcoming H-1B Cap Filing Season

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At a glance

• USCIS will begin to accept H-1B cap petitions for employment in FY 2019 on Monday, April 2, 2018.

• Demand for new H-1Bs is expected to be high, as in past years.

• Employers should expect continued heightened scrutiny of H-1B cap petitions and higher rates of USCIS requests for evidence (RFEs).

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The situation

The FY 2019 H-1B cap season will begin on Monday, April 2, 2018. With less than three months until the opening day of the filing period, your organization should be working closely with your Fragomen team to confirm your H-1B needs and prepare cap petitions.

Demand for new H-1Bs is expected to remain high in the FY 2019 filing season. For FY 2018, USCIS received 199,000 filings, a lower volume than in previous years but still far exceeding the 85,000 quota. Pent-up demand from last year, falling U.S. unemployment rates, and sustained economic growth will mean continued tight competition for cap numbers.

High demand means that the quota is certain to be reached quickly this year. The following are some important tasks your organization should do now to ensure readiness to file during the initial submission window of April 2 to April 6, 2018. Cases must be received at USCIS during these crucial five business days to ensure that they will be entered in the lottery for the limited number of H-1B cap slots.

What to do now

• Assess your H-1B employment needs.  Identify current and prospective employees who will need H-1B sponsorship. Since new H-1Bs are available only once per year, it is important to identify anyone who will need sponsorship in the future, even if they have current work authorization, such as F-1 visa holders currently working on optional practical training (OPT).

• Get LCAs as soon as possible.  Once your organization has identified its hiring needs for next year, work with your Fragomen team to file labor condition applications (LCAs) – mandatory for every H-1B petition – as soon as possible. We expect a surge of LCA filings in the weeks before April 2, which could cause processing slowdowns at the Department of Labor. A federal government shutdown could also delay LCA processing. Obtaining LCAs now will help your organization minimize the impact of any such delays. Though there are a few drawbacks to filing LCAs early, including a shorter H-1B petition validity period, these downsides are far outweighed by the advantages of having LCAs in hand well in advance.

• Consider multislot LCAs.  A single LCA can cover multiple employees in a specific occupation and worksite. If your organization has a genuine need for one, a multislot LCA can increase efficiencies during the busy cap season. It can also provide your organization with greater flexibility to respond to time-sensitive non-cap needs like relocating employees to new worksites and onboarding new hires who are porting from other H-1B employment.

• Gather necessary evidence.  Work with your Fragomen team, corporate colleagues, and H-1B candidates to gather company documents, academic transcripts, degrees and other essential evidence. These can take time to assemble. Missing or incomplete documents can mean delays or denials.

What to expect in the FY 2019 cap filing season

• Plan ahead for USCIS RFEs.  Employers saw unprecedented rates of H-1B cap requests for evidence (RFEs) last year. This year, the Trump Administration is expected to continue its close scrutiny of entry-level wages and positions, occupation degree prerequisites, and candidates’ educational background.

• Be prepared for changes in procedures and requirements.  Though the Trump Administration’s future plans to alter the H-1B petition process are not expected to affect the FY 2019 filing season, last-minute changes in USCIS and DOL processes and policy are always possible, including suspension of premium processing for some case types. Fragomen monitors these developments closely and will inform you of any changes. 

 

This alert is for informational purposes only. If you have any questions about the H-1B filing process, please contact the immigration professional with whom you work at Fragomen.