United States: H-1B Cap Reminder: To Ensure Timely Filing, Gather Documents and Submit LCAs Now

The FY 2018 H-1B cap is expected to be reached very quickly, due to anticipated heavy competition for quota numbers. Employers should work with their immigration counsel now to plan their cap filings, submit labor condition applications and collect supporting documents.

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Feb 23, 2017

With just six weeks until the start of the FY 2018 H-1B cap filing season, employers should be working with their immigration counsel to gather necessary documents and submit required labor condition applications (LCAs) so that they are ready to submit cap petitions during the week of Monday, April 3 to Friday, April 7, 2017.

High Demand for Cap Numbers Is Expected

Demand for new H-1Bs reached unprecedented levels last season and is expected to remain high in the FY 2018 season. For FY 2017, USCIS received a record 236,000 petitions against the annual quota of 85,000. Approximately 151,000 petitions - more than half of all cap filings - did not win a quota number. Of these, approximately 50,000 cases were submitted against the cap exemption of 20,000 reserved for holders of U.S. advanced degrees.

Employers who are not prepared to submit their cap petitions during the first five business days of April could be shut out of access to the limited number of new H-1Bs available for employment in the next fiscal year. Missing the FY 2018 quota means that an employer would not be able to petition for cap-subject H-1B employment until April 2018 for FY 2019 start dates.

Gather Corporate Documents and Other Supporting Evidence

H-1B petitions require corporate records, academic transcripts, degrees and other essential documents. Because these can take time to assemble, make sure to gather them from your organization and from foreign beneficiaries as soon as possible.

Submit LCAs As Soon As Possible

Increased competition for H-1B cap numbers also means that the Department of Labor (DOL) will receive a surge of LCAs in the months leading up to April 3.

Obtaining LCAs well in advance will help your organization avert any possible processing slowdowns at DOL. Prompt LCA filing can also help your organization be prepared for non-cap H-1B employment needs that arise in the coming months.

If your organization anticipates a genuine need for more than one H-1B worker in an occupation at a specific worksite, discuss a multislot LCA with your Fragomen professional. A multislot LCA can also provide greater flexibility to handle time-sensitive non-cap cases, such as relocating H-1B employees to new worksites and onboarding new hires who are porting from H-1B employment with another organization.

Impact of the Change in Administration

To date, the Trump Administration has not effected any changes to the H-1B program or filing process. A draft executive order recently leaked to the press suggests that the President is planning to direct the Department of Homeland Security to consider ways to revise the H-1B cap selection process to ensure that cap numbers are allocated to the "best and the brightest," though the document does not set forth specific suggestions. The order is still in draft form; the final version, when and if it is issued, could differ.

As a general reminder, employers should always be prepared for the possibility of last-minute changes to the H-1B cap filing process, which have occurred in the past. Fragomen is closely monitoring cap policies and procedures, and will provide updates as they occur.

What This Means for Employers

If your organization has not yet begun to prepare for the FY 2018 H-1B cap filing season, contact your Fragomen professional soon to discuss your H-1B plans. There is still time, and starting now is the best way to maximize your organization's chances of meeting its H-1B cap needs.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.

© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

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Immigration Alerts, Fragomen

Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates, (collectively known as “Fragomen Worldwide”) is the world’s largest firm dedicated to corporate immigration, and is recognized as the leading global immigration services provider.

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