Why is April 1, 2019 Important?

April 1, 2019 is the first day U.S. Citizenship and Immigration Services (USCIS) may accept H-1B specialty worker petitions for the next fiscal year, which begins October 1, 2019. To qualify for the H-1B category, the position offered must be a specialty occupation in which a bachelor's degree (or its equivalent) is normally the minimum requirement, and the foreign national employee must hold a bachelor's degree (or its equivalent) in the specialty defined by the position. In some cases, a bachelors-level threshold may be met through a combination of education and work experience.

Due to the overwhelming demand for the annual allotment of 85,000 new H-1B slots, employers who wish to file new H-1B petitions for current or future employees should do so April 1. The number of H-1B approvals requested by employers has reached the annual H-1B cap every year for more than 10 years. Last year, USCIS received 190,098 petitions within the first week of the petition period, then conducted a random lottery to determine which petitions would take the 85,000 slots.

Are There Certain Employees We Should Consider?

Yes, four situations come to mind:

1. Students who hold F-1 visa status and who are working for your organization under a grant of Optional Practical Training or STEM Optional Practical Training work permission;
2. Certain L-1 Intracompany Transferees or TN (NAFTA) workers who work for your organization;
3. Candidates who are not yet working for your organization but whom you have an interest in employing in the near future; and
4. Dependent spouses who hold H-4 status and who have been authorized to work with an Employment Authorization Document (EAD).

F-1 students and L-1 transferees have limited-duration work permission. If you wish to continue employing these individuals beyond their current authorization, the H-1B category may be an option.

Why F-1 Students?

Some F-1 students may hold Optional Practical Training (OPT) work permission that is limited to one year. Other F-1 students may be eligible for an additional 24 months of OPT work permission. Either way, OPT is time-limited.

Why L-1 Intracompany Transferees?

The L-1 intracompany transferee visa category applies to foreign nationals who have been employed abroad in executive, managerial, or specialized knowledge capacities for at least one year with a commonly owned foreign company, and who are in the United States working for the same or a related U.S. employer.

L-1 executives or managers (L-1A) may remain in the United States for a maximum of seven years. Specialized knowledge (L-1B) employees may remain for a maximum of five years.

Why H-4 Spouses with Employment Authorization Documents?

In 2015, a lawsuit was filed against the U.S. Department of Homeland Security (DHS) challenging the legality of the H-4 EAD program. Although the lawsuit is in abeyance, the current administration has stated intent to eliminate the program, placing H-4 EAD workers at a greater risk for losing work authorization. Because the fate of the H-4 EAD program is uncertain and there is a risk the program may be altered or terminated, H-4 spouses working with EADs may wish to have their H-4 statuses changed to H-1B.  

Why TN Employees?

While Trade NAFTA (TN) workers are not limited in employment duration like their L-1 counterparts, pursuing permanent residence while holding TN status can be problematic. Employers may want to change their TN employees to the H-1B category to facilitate permanent residence (green card) sponsorship.

Are There any Exemptions from the Annual H-1B Cap?

Persons already counted under the H-1B cap and who need an extension of stay are not subject to the annual limitation. Similarly, persons who already hold H-1B status and are transferring to a new employer are exempt from the cap. The annual limitation applies only to persons not yet counted against the annual cap. Also, certain types of educational or nonprofit organizations that file H-1B petitions are exempt from the H-1B numerical limitation.

Possible Electronic “Lottery” Processing

The current administration has published a notice that it seeks to implement an electronic registration system and process that would eliminate the need for a paper petition to be filed in order to be counted in the annual H-1B lottery. Due to the length of the period for notice and comment and the technical requirements for building and implementing an electronic filing or registration system, it is doubtful that the system will be ready in time for this year’s H-1B lottery. Until further notice, employers should be prepared to file H-1B petitions by mail, as in prior years.