H1B Visa 2018 Cap Season Background
It’s that time of year again—the highly competitive H1B Visa 2018 season officially starts April 1st. If you weren’t fortunate enough to be selected last year then this article will serve as your ULTIMATE guide! H1B Visas are dedicated to foreign professionals in specialty occupations including computer programmers, architects, physicians, dentists, engineers, accountants and more.
The attorneys at SGM Law Group specialize in H-1B visa and employment-based immigration cases. We’ll be regularly updating our readers on H-1B 2017-18 cap count, lottery predictions, latest news etc. during the next couple of months. If you still have questions after reviewing our H1B Visa 2018 Complete Guide, contact us directly to discuss your eligibility and learn the next steps in applying for your H1B Visa for 2017-2018 Fiscal Year.
In this guide, you’ll learn about the following topics:
- 2017 Lottery Overview
- 2018 Lottery Predictions
- How the Lottery Works
- Eligibility Requirements
- Who is Exempt from the Cap
- Master’s Cap
- Premium Processing
- H1B Visa Fees
- H1B Visa Sponsors
- Common Filing Errors
- Federal Register New Rule
- President Trump’s Travel Ban
- H1B FAQs
- How We Can Help
For those who prefer a visual overview of the H1B process, take a look at this helpful beginner’s guide that compliments this post:
Overview of H1B 2017 Cap Lottery
The United States Citizenship and Immigration Services (USCIS) considers the H1B Visa 2018 season to run from October 1st 2017 to September 30th 2018 but begins accepting petitions on April 1st 2017.
If you received a rejection notice for the previous H1B season during fiscal year (FY) 2017, it also indicated that as a non-selected applicant you are permitted to file a new petition for FY 2018 on or after the 1st of April.
Here are some other important points outlined in the USCIS rejection notice.
- Foreign workers with specialized knowledge may submit I-129 petitions for FY 2018 starting on April 1st, 2017.
- The H1B cap for FY 2018 will remain unchanged from previous lotteries
- The regular quota will be 65,000 and the US Master’s quota will be 20,000
- Based on previous season, USCIS expects to obtain the most petitions for H1B 2018 within the first five business days. If the cap is exceeded in that time period then a lottery via automated computer will be conducted.
- Any petitions that are not chosen in the lottery or received after the cap is closed will be rejected.
It is important to note that April 1st falls on a Saturday in 2017. This means that the USCIS will begin processing H1B petitions on the first business day of April, which would be April 3rd, 2017. The USCIS has made it clear that “all cap-subject H1B petitions filed before April 3, 2017, for the FY 2018 cap will be rejected“.
Will We See An Upcoming H1B 2018 Lottery?
During the FY 2017 H1B visa lottery, 236,000 petitions (taking into account the Master’s exemption) were received by USCIS within the first week. As a result, a lottery was conducted last year to randomly select those among the pool lot.
While we cannot guarantee it with absolute certainty we can predict based on the history of past H1B seasons that there will be another lottery for the H1B Visa 2018 season. We’ve seen a lottery occur every year since FY 2014 so based on that we think it’s safe to predict.
Considerations for Increased Number of Filings
- Greater demand for these types of specialty worker visas due to improvements in the domestic job market over the last 4 years.
- Reapplications on behalf of petitioners not selected in the last H1B season.
- Changes in restrictions related to L Visas and B Visas. We’ve also noticed a greater preference of H1B visas from companies.
For these reasons we expect the H1B Visa cap 2017-2018 to remain open for no more than 5 business days.
Lottery Overview: How the Lottery Works & Predictions
The H1B Visa 2018 process is rather simple when broken down. Under the regular cap, 65,000 petitions are randomly selected by a computer. An additional 20,000 petitions will also be selected under the advanced degree exemption. 6,800 will be set aside for citizens of Chile and Singapore, according to the Free Trade Agreement.
What happens after the lottery selection?
Once a petition is selected, it will be sent to a service center to be approved or rejected. Then, a tracking identifier called an EAC number is assigned to each petition.
The first 3 letters of your petition’s EAC number indicate the location of the service center that is processing your petition. For example, WAC would mean the Western Adjudication Center in California. The two numbers that appear next correlate to the year followed by the working day. The last five numbers indicate your case number. An example would look like this: WAC-18-021-56974.
If you have any questions about this process, contact the immigration lawyer that helped you file the petition for your H1B visa.
Eligibility Requirement for Specialty Occupation
In order to be eligible for the specialty occupation criteria the H-1B job must adhere to one of the criteria below:
- The job must require at minimum a Bachelor’s degree or higher (or equivalent)
- The required degree for the H1B job is considered common to the industry
- The position can only be executed by an individual holding a degree due to its complexity
- It is normal for the employer to require a degree (or equivalent) for the position because the skills are so specialized
Not Eligible for an H-1B Visa? Other options…
If you’ve determined that you are not eligible for an H1B visa based on the aforementioned points, consider filing for an H-2B visa or even an L1 visa may be a viable option. An L1B visa is also a non-immigrant visa option which permits employers based both in the United States and abroad to transfer personnel from the foreign offices to the operations based in the US for up to 5 years.
Cap Exempt Petitions
What exactly are cap-exempt petitions? We get this question often so it’s important to address it. A cap-exempt petition is one that was previously counted against the cap.
It can also be one that was used as a way to extend the H1B worker’s time in the U.S. or to change the terms. Notice that some positions with qualified workers are not required to be subject to the annual quota even if you (the petitioner) have already been counted against it.
H1B Visa 2018 Masters Cap/Quota
Based on the guidelines set by USCIS, 20,000 petitions are exempt from the H1B cap for beneficiaries who have earned a U.S. Master’s Degree or higher. This is what’s referred to as the advanced degree exemption.
What if USCIS receives more than the 20,000 petitions?
If this happens, USCIS will use a lottery system to randomly select the 20,000 and then conduct a lottery for the regular pool. Those petitions not chosen for the Advanced Degree exemption will be entered into the lottery for the regular cap.
Premium Processing – How Does This Work?
Premium processing service allows an employment-based petition/application to be expedited. USCIS specifically ensure 15 calendar day for processing those petitions OR USCIS will issue a refund of the service fee.
It is important to note that purchasing premium processing only reduces the processing time for your I-129 petition. It does not make you cap-exempt nor does it guarantee you a spot in the lottery. If your petition happens to be selected, then your start date will still be October 1st like all other applicants.
Who is eligible? The USCIS has developed a complete chart of designated eligible classifications.
MARCH 2017 UPDATE: The USCIS has just announced that premium processing will be suspended for all H1B petitions for the 2018 season. This applies not only to new H1B petitions, but also to transfers, extensions, and amendments. This suspension has been put in place to allow the USCIS to address long-standing petitions that were filed without premium processing. Learn more in this post.
H1B Visa Fee 2017-18
You may or may not have heard about the recently passed bill which increases the H1B Visa fee 2017-18 by $4,000 by the US Senate (the L1 Visa Fee was also increased by $4,500 on December 18th).
Fees which take effect on April 1st
- Base Filing Fee: $460
- USCIS Anti-Fraud Fee: $500
- ACWIA Education and Training Fee: $750 for employers with less than 25 employees and $1500 for employers with greater than 25 employees
- Public Law 114-113 Fee: $4,000
- Premium Processing (optional): $1,225
- Attorney fee: See Our Fee
Here’s one scenario to illustrate how the fee would be applied to a foreign IT firm. Say for example Company X has more than 50 employees and has more than 50% of people on the H1B visa. If they are filing for the H1B visa with premium processing than they would be responsible for the base ($325), fraud fee ($500), Training fee (if applicable), new $4,000 fee, premium processing ($1225) and attorney fee.
H1B Visa Sponsors
Finding the appropriate H1B visa sponsor is often one of the biggest challenges. One viable source to find a suitable sponsor is through an H1B Visa Sponsor Database. You can filter your search by city or zip code and also see information detailing what sorts of jobs they have filed in past years. Please note that we take no responsibility for the accuracy of the information in the link above.
American Universities are a great place to look because academic institutions are not subject to the annual cap restriction so they can sponsor anyone if they think they’re suitable for the job.
Has My Case Been Accepted?
Are you wondering if your case has been accepted? Our lawyers understand that the H1B visa process of waiting can be stressful for both you and your families.
In past years, the USCIS has been timely in sending us email receipts for approval notices and identifying individuals who have not been selected in the lottery. In all cases, the best way to stay up-to-date with the status of your petition is to keep open lines of communication with your assigned lawyer.
See a case study of one company’s H1B approval!
Avoid These Common Filing Errors
There are a number of issues and filing errors we see repeated time and time again which can interfere with getting an H1B approval.
Choosing an incorrect I-129 start date
Sometimes, during the filing process, applicants will choose the incorrect start date on the I-129. Check with your attorney to ensure that all dates, wages, and important details are accurate to avoid having your petition denied.
Incomplete Job Description
To ensure that your job description meets all the necessary criteria, it’s best to have it thoroughly reviewed by a qualified H1B visa lawyer.
Submitting your petition after the date that was issued to you by the USCIS can result in a delay in processing. To make sure that you do not create this delay, file your petition with plenty of time to spare.
It is important to note that the USCIS service center only considers a submission as timely if it reaches the center before the expected date. Because your petition will first reach a P.O. box, be sure to submit it well before the last day to guarantee that the service center will have time to collect it.
Labor Condition Application Delays
We’ve seen cases where the iCert visa portal system doesn’t always recognize the employer/company’s Federal Employer Identification Number or FEIN. This occurs because a pre-verification has not been completed prior to the LCA being submitted.
Unacceptable Delivery Method
Adjudicating service centers are very particular about the way that petitions are submitted. Delivering your petition by hand or through some other unconventional method can result in not having your petition processed.
To ensure that you are using an approved delivery method, send your petition via the United States Postal Service, Federal Express (FedEx), United Parcel Service (UPS), or some other bonded delivery service. Consult with your immigration attorney to learn which services are considered bonded.
Choosing the Wrong Service Center
The last issue that often comes up is filing with the wrong service center. Petitions which do not include the necessary fee will be denied and those sent to the incorrect service center will also not be processed correctly. Be sure to write a separate check for each one of the filing fees and sign all checks prior to sending.
Because of the exact nature of the immigration process, complications can easily arise from unique circumstances. Working closely with an immigration attorney can help you decide if these challenges apply to you and what you can do about them.
If you are the founder, co-founder, or CEO of the company that you wish to work through, then you will be fulfilling the role of both the employer and the employee, which is not accepted by the USCIS. If the structure of your company allows for a Board of Directors to pay you instead of paying yourself, you may be able to secure an H1B visa.
Another issue develops when the employer that has petitioned on your behalf is a small business. The LCA has particular rules about how much an employee can be paid. If the small business does not have the capital to fulfill these requirements and also pay the petition filing fees, then you will not be able to file.
2017 Final Rule
As of January 17th, 2017, the Federal Register will implement a series of changes called the final rule. These changes will impact aspects of several non-immigrant visas, including H1B classifications.
The most beneficial of these changes is the addition of a 60-day grace period for anyone on a nonimmigrant visa whose employment is terminated. Usually, a foreign worker in this situation would find his or herself “out of status”.
Under the final rule, however, the USCIS will grant the worker almost 2 months to either find another employer or have their visa status changed to accommodate the transition.
The rule will also provide a 10-day grace period before and after the visa validation period. This will allow visa holders to adjust to life in the country before starting employment and also give ample time to finalize affairs before leaving the country after the visa has expired.
For prospective H1B visa holders that are applying for positions that require a license (e.g. nurse, engineer, pharmacist), the final rule increases the possibility of obtaining an H1B visa that has been temporarily approved without the required license. This is only granted to applicants that can prove that technical issues prevent them from being licensed or that they will be closely supervised by a licensed senior throughout their employment.
President Donal Trump’s Administration Changes
Travel Ban Executive Order
On January 27th, 2017, the newly-elected President Trump signed an executive order into effect that puts a temporary travel ban on the following countries: Iraq, Iran, Syria, Sudan, Libya, Somalia, and Yemen.
If you are an H-1B applicant from these countries, then you will not be permitted to enter the U.S. for the 90 days that follow the signing of the order. H-1B holders from these countries do not need to fear deportation as long as they are already in the U.S. under H-1B status. For these people, it is not advisable to leave the country until the ban has been lifted or the conditions have changed.
Also, if you are an H-1B holder who is not from any of these countries, the travel ban does not apply to your situation.
However, the President has commissioned his staff to implement a program that makes the H-1B screening process more stringent and selective. This may mean mandatory interviews, amended petitions and applications, as well as more comprehensive background checks and documentation.
If you have any questions regarding how this Executive Order affects your H-1B petition or status, be sure to consult with your immigration attorney.
Work Visa Executive Order Draft
While the travel ban executive order may not apply to your situation, there are several changes on the horizon that could have a big impact on nonimmigrant work visas such as the H1B and L1. The purpose of these changes would be to minimize the potential for large staffing companies to take advantage of the immigration system.
The first one is the implementation of regular government visits to L1 work sites to prevent U.S. employers from replacing their native workers with foreign nationals. The executive order draft calls for these site visits to be extended to all work visa classifications, including H1B.
There will also be an investigation into the “extent of injury” done to U.S. workers by the presence of foreign nationals under H1B, L1, and B1 status in the U.S. workforce. This will be to identify areas in which the immigration system is being abused to the detriment of American workers.
Lastly, there is a congressional bill that may be passed soon. It would effectively remove the lottery system and replace it with a system that gives preference to foreign nationals that earn a substantial income. This would make it very difficult if not impossible for foreign nationals earning a small income to obtain H-1B visas.
H1B Visa Frequently Asked Questions
Below are some H1B visa frequently asked questions our office receives. Should your question not be mentioned below please don’t hesitate to contact our law offices.
If I would like to work in the United States, can I just apply for an H1B visa by myself?
You must have a job offer from a U.S. company or organization to apply for an H1B visa.
If I have an Associates (two-year) degree plus one year of work experience as an engineer, can I qualify for the H1B visa?
You must have at minimum a U.S. Bachelor (four-year) degree or its equivalent in order to qualify for the H1B visa. In regards to work experience, three years of working is equal to one year of university so say you had six years of work experience plus two years of college, you could qualify. Moreover, your work experience and degree should be relevant to your occupational title.
I currently have a job with a public-school system as a teacher. Are schools subject to the annual quota?
Only if the school district has an approved petition based on the University cap exemption after 2006.
Are there provisions for the continuity of H1B petitions in case there is a restricting of the company?
There is continuity in this case—in other words, an amended H1B petition isn’t required when a new entity takes over the interests and responsibilities of the originally approved employer and whereas the conditions of employment are the same.
How does my employer (under section 105 portability provisions) complete the I-9 verification requirement?
This example is comparable to the 240-day grace period of 8 C.F.R. section 274.12(b)(20), which permits employment with the same employer for up to 240 days after an extension petition is filed.
Can I file multiple or duplicate petitions? What happens if I do?
Based on the interim rule which was announced in 2008, employers may not file more than once or duplicate H1B visa petitions for the same employee. In order to ensure fairness, USCIS will deny multiple or duplicate petitions filed by an employer for the same H1B worker.
Will I be refunded the fees for filing twice?
You will not receive a refund for these filing fees.
Where do I mail my H1B petition?
Your lawyer should have the information for the correct service center to file with which will depend on the beneficiary’s work locations specified on the petition application. You can also see this website for more information.
When is the H1B visa 2018 lottery date expected?
Last year the automated lottery took place on April 13th. While we can’t ensure that it’ll be on the same date for the H1B visas 2018 season, we do predict it’ll be shortly after the season opens.
What are the advantages of preparing early?
There are many advantages to preparing early. As with most situations in life, when you plan ahead of time you’re better able to respond to challenges down the road. When it comes to employers, they can begin considering which one of their workers might require H1B cap-subject filings. Foreign nationals and their respective employers should work side-by-side throughout the process to ensure all criteria are met.
What is the length of stay on an H-1B?
This visa is granted for up to three years with the option to extend it to a maximum of six years.
What are the H1B visa fees?
The petitioner and/or sponsoring employer are responsible for paying the following fees to USCIS:
- Employer Sponsorship fee
- Premium Processing Fee (optional)
- Fraud Prevention and Detection Fees
- Filing Fee
What fees are my employer responsible for?
Per immigration law, the employer is responsible for paying the training fee (when it applies) and the fraud fee.
If I filed for premium processing could I avoid being subject to the cap?
Filing for premium processing does not make you exempt from the cap. Premium processing is simply a way to expedite the process. USCIS specifically ensure 15 calendar day for processing those petitions OR USCIS will issue a refund of the service fee.
Who is responsible for setting the cap amounts?
Congress determines the current annual cap for the H1B visa category. Also remember that in accordance with the Free Trade Agreement, 6,800 visas are set aside for citizens of Chile and Singapore.
Certain H1B workers who perform services for the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the cap if their employers filed their petition before December 31, 2019. Note that employers may not file a petition or exemption request for an employee more than six months before the intended start date.
What is a Labor Condition Application (LCA)?
A Labor Condition Application is what your must certify and send at the time of filing your petition. A copy of this document is also accepted. Always be mindful of the LCA processing times and plan your documentation accordingly.
Note that if the application is certified for multiple workers, you’re required to give the name and case receipt number of any worker who has previously used the LCA.
Am I permitted to have more than one sponsor for H1B Visa 2018?
According to current regulations, if you as the foreign worker intent to perform services for more than one employer, each one is required to file a separate petition. If you then receive both petitions approved and select one employer but later decide to leave that employer for a second one, then no new petition is necessary.
How do I speed up or expedite my H1B transfer?
An H1B transfer must follow the same process as you would for filing a new petition. One big difference between the regular H1B filing and a transfer is that a transfer is not subject to the cap since the individual already has H1B status.
Can I work for my employer anywhere in the country once my status is approved?
When USCIS approved your H1B visa, they took into consideration the specific location of employment as well as the qualifications the employer specific as well as the prevailing wage for the area.
During your employment, if the work site changes, you must submit an amendment with certification for the new location. In some situations, you may be exempt from filing the amendment but it’s best to contact your lawyer if the terms of your employment suddenly change.
Is there a reason some H1B petitions take longer than others?
Why? Each USCIS service center has a different workload for H1B Visa 2018 so it’s hard to know when the paperwork will be processed. For cases that are short on time, it’s best to consider premium processing.
How Can We Help with your H1B Visa 2018 Case?
SGM Law Group has an excellent track record of gaining approvals in complex H-1B cases, including those sponsored by startup companies. We specialize in employment-based immigration and our attorneys have extensive experience in devising creative strategies to overcome unique challenges faced by candidates from smaller technology companies among many others. We ensure that all the paperwork and documentation is completed accurately and presented in the best possible way to maximize your chances of approval.
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