Time to think about filing FY 2019 H-1B Petitions

If you are interested in filing a new H-1B petition (as opposed to an extension of stay or change of employer petition), we are advising our clients that they must be prepared to file on March 30, 2018 for a April 2, 2018 delivery date to USCIS. This will ensure that the petition arrives on Monday, April 2nd, 2018. Even though the approval will not be effective until October 1, 2018, the petition must be filed six months early.

Here is why we are telling our clients to send in their H1B Cap Petitions for filing by March 30th, 2018. There is a long trend of H1B Cap filings to enter an H1B Cap Lottery. In 2015, 2016, and 2017 the total allocation of H-1B numbers was used up within the first five days of filing April 1st. Years earlier in 2006 and 2007 the total allocation of H-1B numbers was used up on the very first day of filing. Due to the economic downturn that accrued in 2008, the numbers were much slower to be used and were not used up. In 2011 the numbers were used by November 23rd, 2011 and in 2012, the numbers were used up by June 11, 2012. The last four years we have seen the H1B Cap being reached at least by the first 5 days H1B Cap petitions may be filed. Under the regulations, where H1B Cap petition filings reach the H1B Cap limit of 65,000 H1B Bachelors Petitions and/or, 20,000 U.S. Masters H1B petitions within the first 5 business days of H1B Cap petition filings, a Lottery for the H1B petitions must be held to randomly select H1B petitions that may be processed. While it is anticipated the number of H1B Cap Petitions to be filed this year under the Trump Administration will be less than prior years. We anticipate the trend of H1B Cap Petitions will exceed the H1B Cap in the first five business days of April. The only way to be assured (as much as possible), that your H-1B petitions will be approved is to file them on the first day. We say "as much as possible" since the Immigration Service has indicated that if more H1B Cap Petitions are filed within the first five business days, then there are numbers available, a lottery will have to be held.

Therefore, it is quite possible, that even if the H1B Cap Petition is filed on April 2nd, the petition may not be successful unless it is chosen in the lottery.

As mentioned above, the H1B Cap only applies to new petitions. Petitions which have already counted under an H1B Cap and are now only being filed for change of employers or extensions of stay may be filed at any time; as appropriate to their timelines.

At this time, employers should go over their hiring needs, and especially consider any employees who are on optional practical training (OPT), and, therefore, may need H-1B employment authorization in order to continue their employment. Do not be caught up in the last minute, frantic preparation and filing which many have been involved with in the recent years.

When considering the filing of an H1B Cap petition for an employee. We recommend the employer choose an experienced immigration attorney for this H-1B season. Litwin & Smith, A Law Corporation has expertise to provide best practice guidance and filing strategies when preparing H-1B petitions to successfully navigate the increasingly complex H-1B process in light of changes to H-1B adjudications under President Trump including: "Buy American and Hire American" Executive Order and the 2017 USCIS Computer Programmer Policy Memorandum. In addition, to Level 1 and Level 2 Wage Scrutiny, Specialty Occupation and Establishing Degree Requirements, Practical Implications of "Buy American and Hire American" Executive Order, and the Employer-Employee Relationship: Consulting Companies, Multiple Worksites, and Offsite Employment.

Our goal at Litwin & Smith is to give you the best service possible. Look at employees who are on F-1 (student practical trainees) who need an H-1B to continue working with you, résumés of persons who are currently going through the hiring process, and persons who were not able to make it under last year's H-1B cap and contact us now.

If you have any questions regarding the filing of a new H-1B petition, please be sure to contact our office at (650) 588-7100 as soon as possible. You can also email Mandy Fok ([email protected]) or Kim Salvador ([email protected]). Thank you for your time, confidence, and support!