On April 2, 2018 (April 1 is a Sunday), USCIS will begin accepting H1B petitions subject to the Fiscal Year 2019 cap. Beneficiaries of successful FY 2019 H1B petitions will be eligible to start working in the U.S. on October 1, 2018.
While April 2nd may appear to be away at the moment, experienced employers will vouch that it arrives before you even know it. And unless you start planning for your FY 2019 H1B filings now, you may end up missing the bus.
H1B Cap – What Is It?
- There is an annual limit on the number of new H1B petitions that can be approved in a year. This annual limit is referred to as H1B Cap.
- The current annual cap on the H1B category is 65,000. An additional 20,000 H1Bs are available for those who have a U.S. Master’s degree or higher.
- The H1B filing season begins April 1st each year, to enable employers to petition for foreign nationals to come and start work in the US under H1B status on October 1st of the same calendar year.
Here are the top 5 reasons why you must start planning for your H1B Cap 2019 filing NOW!
1. Next H1B Bus Is 18 Months Away!
Employers who miss filing H1B petitions in 2018 will not have a chance to file new H1Bs till April 2019, and will NOT be able to bring in new employees under the H1B program until October 1, 2019.
To avoid this undesirable scenario, employers must begin to plan the April 2018 filing now, and ensure that their H1B petitions will be ready to file before April 2nd, thereby increasing the likelihood of their petitions being taken up for consideration by USCIS.
Once USCIS receives a sufficient number of H1B petitions to reach the H1B cap numbers, it will NOT ACCEPT further H1B petitions.
2. H1B Lottery Again?
As the economy continues to improve, it is widely anticipated that even more employers will seek H1B’s for their potential employees this April 2018.
Hence, H1B cap is expected to fill during the 1st week of April 2018, and we are most definitely looking at another H1B lottery this year!
Advance planning is essential to ensure on-time filing of H1B petitions within the first week of April, thereby making certain that your H1B petitions have the greatest chance of being taken up for consideration in the lottery.
H1B Lottery – What Is It?
- If USCIS receives more petitions than it can accept during the first 5 business days of April, it will use a computer-generated random selection process to randomly select the number of petitions required to reach the numerical limit.
- This process is popularly referred to as the H1B lottery.
- During FY 2018 nearly 199,000 petitions (including Master’s exemption) were received during the first week of the filing period, leading to a lottery on April 11, 2017.
- USCIS will reject cap-subject petitions that are not selected in the lottery.
3. Credential Evaluation Setbacks
In order to qualify for an H1B, foreign nationals who have education from outside the U.S. must demonstrate that their education is ‘equivalent’ to a 4-year U.S. bachelor’s degree.
In such cases, a Foreign Credential Evaluation must be obtained from a credential evaluator that can evaluate foreign degrees and their equivalency for the purposes of the H1B program.
With a great number of H1B 2019 applications requiring education evaluation for H1B, credential evaluation services usually become very busy during this time of the year. Hence, it is very important to obtain this Credential Evaluation as early as possible to avoid last minute delays.
Early determination of a Credential Evaluation is essential in case evaluation cannot be obtained on the basis of foreign degree alone or in the desired specialty occupation. The sooner an employer knows about it, the more time there is to incorporate alternative strategies.
Employees should compile all documents related to education, experience, immigration history and prepare a comprehensive resume well in advance of requesting the credential evaluation.
4. Labor Condition Application Delays
As part of the filing procedure, every H1B petition filed must be accompanied by a certified Labor Condition Application (LCA). An H1B petition that lacks a certified LCA will be rejected or ultimately denied.
To satisfy this LCA requirement, the employer must prepare an LCA and submit it to the Department of Labor (DOL), which must then certify it.
LCA’s currently take no less than 7 days to process. And as we get closer to the H1B filing date, the number of LCA’s filed with the DOL is only going to increase, leading to possible delays in LCA approvals.
Also, because LCA’s are filed using an electronic system, delays caused by system breakdowns are unavoidable.
Hence, a lack of advance planning will result in LCA’s filed too late to make it for the April 2nd deadline.
5. Any H1B Work Visa Alternatives?
Employers who miss the H1B cap and cannot wait until 2019 may be forced to look at alternative visa options. However, viable alternatives are few and far between. The only true alternatives to the H1B are the O-1, TN and the L-1. However, all three have drawbacks and/or limitations.
The O-1 can only be utilized for individuals with extraordinary abilities, which is a very high standard. Only a very small percentage of individuals eligible for H1B will also be eligible for the O-1.
The TN is restricted only to nationals of Canada and Mexico and to a limited list of professional occupations. Moreover, the TN lacks dual intent.
The L-1 is limited to intra-company transferees. This means that in order to utilize the category, the employee had to have worked for a foreign parent, subsidiary or affiliate company for at least 1 year. Moreover, increasing scrutiny of petitions in this category has made this visa tougher to obtain for many individuals.
My Case Scenario
USA Company Inc. wants to bring in several foreign nationals to work at their company in the U.S. They contact an immigration attorney in the mid-March to begin the H1B process. Will they be able to file the H1B petitions in time?
While there technically is still time to prepare and file the petition in time, many issues can arise that can derail the entire process. For example, if the foreign nationals have foreign educational credentials, they must all be evaluated. Each evaluation can take several days to obtain and the result of the evaluation may determine if the case can even go forward. Also, LCA’s must be submitted and certified before the deadline. If USA Company Inc. is a relatively new company or has not filed H1B’s in the past, it is possible that DOL’s iCert system will not recognize their FEIN and they may have to be pre-certified, which will add several days, at best, to the timeline. These and other issues may arise to delay or completely derail the filing process.
In addition to the top 5 reasons emphasized above, unexpected hiccups often arise while preparing for the H1B filing.
To eliminate the uncertainty and ensure a successful filing, it is essential that employers start planning their H1B 2019 filing NOW!
VisaPro Law Firm can help you effectively plan and successfully accomplish H1B 2019 Cap filings. Our experienced attorneys have filed H1B petitions with a near 100% success for a variety of clients ranging from one-man start-up firms to multinational companies, from software engineers to market research analysts, fashion models, optometrists, medical technologists, organic farm managers, social workers, etc.
Contact VisaPro Law Firm today for a FREE H1B Cap 2019 Filing Plan Consultation. We’ll talk through your priorities and recommend strategies for H1B 2019 filings based on our attorneys’ near 100% success rates.
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