SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

1.                   These types of cases are subject to the H-1B cap:

• International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
• International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
• Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
• Prospective international employees currently living abroad.

2.                   These types of cases that are not subject to H-1B cap:

• H-1B amendments/extensions/transfers
• When the employee has been in H-1B status for less than 6 years
• Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico
• MDs who have received a J-waiver of their 2 years foreign residency requirement.
• H-1Bs filed by institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.

3.                   Employees with a U.S. master’s degree or higher get two chances at the H-1B cap.  The USCIS first runs a Masters Cap H-1B lottery to determine 20,000 lottery winners.  All H-1B applicants who lose this lottery are then placed in the general 65,000 H-1B lottery.

4.                   Cap-Gap Rule: USCIS automatically extends the H-1B status of OPT F-1 students who win the H-1B lottery.  The OPT F-1 status is extended through October 1, at which point the status converts to H-1B by operation of law.

5.                   An Employee does not have to hold H-1B status for the employer to initiate green card process. This can be started while the employee is on F-1 or most other statuses.

6.                We do not recommend that F-1 students travel outside the US while their H-1B cap petition is pending at USCIS.  USCIS may consider the petition to be abandoned.  If the F-1 student does travel, the employee is required to apply for an H-1B visa abroad before re-entering the US.

7.                   The employee’s proposed worksite may not change until the H-1B CAP petition is approved.  If the worksite changes the USCIS is inclined to deny the case.  If possible the H-1B cap petition should be upgraded via Premium Processing.  Upon approval of the H-1B, the employer can file an H-1B amendment.

H-1B CAP: PAST DEMAND AND 2018 DEMAND

This year’s H-1B filing date of April 1, 2018 is coming fast.  MU Law predicts that H-1B petitioners will file fewer than the 200,000 petitions that were filed last year.  

When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery because it received over twice as many H-1B petitions as there are slots available.

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

The H-1B is usually associated with IT positons.  Most of the H-1B slots are used by IT professionals.  Many healthcare professions also qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

International workers who are working in the U.S. on an H-1B visa with another H-1B employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 1, 2007
H-1B 2008 (FY 2009)	85,000	April 1, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 1, 2013
H-1B 2014 (FY 2015)	85,000	April 1, 2014
H-1B 2015 (FY 2016)	85,000	April 1, 2015
H-1B 2016 (FY 2017)	85,000	April 1, 2016
H-1B 2017 (FY 2018)	85,000	April 1, 2017
H-1B 2018 (FY 2019)(projected)	85,000	April 1, 2018

VISA BULLETIN MARCH 2018: ANALYSIS AND PREDICTIONS

The Department of State has just issued the March 2018 Visa Bulletin.  This is the sixth Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.

March 2018 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	C	C	C	C
EB-2	C	01DEC13	15DEC08	C	C
EB-3	C	15NOV14	01JAN07	C	01MAY16

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	C	C	C	C
EB-2	C	01FEB13	08FEB09	C	C
EB-3	C	01JAN16	01JAN08	C	01OCT16

MU Law Analysis (all references are to Table A unless noted)

All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future.

China (mainland-born):  Both China EB-2 and EB-3 favorably progressed, each by two months in Table A.  The China EB-3 remains more favorable than Chinese EB-2.  The odd situation of China EB-3 progressing faster than China EB-2 will remain to be the case for the foreseeable future.  A note at the end of the February Visa Bulletin says that both China EB-2 and  EB-3 should move several months in the near future.

India:  Both India EB-2 and EB-3 progressed.  EB-2 only progressed by one week.  EB-3 moved ahead by 4 weeks.  A note at the end of the February Visa Bulletin says that India EB-3 should move 1-3 months in the near future.

Mexico: Mirrors All Other in analysis.

Philippines: The Philippine EB-3 date moved two months, which is its best movement in FY2018. This may reflect the fact that I-485 processing times may slow because of the new I-485 EB interview requirement.  If EB I-485 interview times slow, it will cause the DOS to free up more visas for Consular Processing petitions.  This is also reflected in the fact that EB-3 Table B moved three months.  A note at the end of the February Visa Bulletin says that we should expect one month movements in EB-3. MU is slightly more optimistic than this projection.

H-1B CAP 2018: NEWS AND NOTES

The H-1B cap filing date will be here before you know it.  New H-1Bs are subject to the H-1B cap and must be filed on April 2-6, 2018, for a start date of October 1, 2018.  The USCIS treats all H-1Bs that are filed April 2-6 as if they were filed on the first day of H-1B season.

The H-1B cap will surely be oversubscribed next year. When the H-1B cap is oversubscribed, the USCIS holds an H-1B lottery, which is what they did this past April.  In April 2017, 42% of H-1Bs that were filed on April 1 “won” the H-1B lottery and 58% lost the H-1B lottery. 

This year we are expecting that fewer H-1Bs will be filed than in 2017.  It would not surprise us if the H-1B lottery winners exceed the number of H-1B lottery losers.

A variety of types of case are subject to H-1B cap:

• International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
• International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
• Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
• Prospective international employees currently living abroad.

These types of case are not subject to H-1B cap:

• H-1B amendments/extensions/transfers
• When the employee has been in H-1B status for less than 6 years
• Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico
• Institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.

Please contact us if you have any questions or are looking for representation in filing H-1B cap petitions.