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January 22, 2018

H-1B Season Approaching

April 1, 2018 will mark the commencement of the annual H-1B filing season. That is the first day that U.S. employers can again file petitions with U.S. Citizenship and Immigration Services ("USCIS") to request H-1B visas on behalf of foreign nationals who are subject to the annual H-1B visa cap. If approved, the foreign nationals will be permitted to commence work in the United States in H-1B status on October 1, 2018.

H-1B visas are available for foreign nationals offered employment opportunities for "specialty occupations," which require a minimum education level of a bachelor's degree or its equivalent to fulfill a position's occupational responsibilities. H-1B status is available for an initial time period of up to 3 years, and a maximum total time period of 6 years, with possible extensions in certain circumstances.

Currently, H-1B visas are capped for new employment at 65,000 per fiscal year, with an additional 20,000 spots available to those holding advanced degrees from a U.S. university. Once enough petitions have been received to reach the annual limit, USCIS will not be able to accept any additional cap-subject H-1B petitions for that fiscal year. H-1B petitions must be received by USCIS on April 1, 2018, which is the first day that the petitions can be accepted for processing this year. It is anticipated that the "cap" will be reached within that first week and the petitions will be chosen on a random "lottery" basis, as has been the case in recent years.

With the limited number of new H-1B visas allocated on a yearly basis, it is important for employers interested in seeking H-1B status for non-citizen employees to be mindful of the filing timeframe and the need to complete processing of all required documentation and evidence. Employers should also be mindful of the recent trends impacting the H-1B petitions under the current administration, including a higher scrutiny of entry-level positions and changes to extension requests.

It is also important for employers to keep alternatives to H-1B nonimmigrant visas in mind when examining a potential offer of employment to a non-citizen or non-lawful permanent resident. For example, if a potential new employee already holds H-1B status from a prior employer, that person may not be subject to the "cap", and may instead be eligible to start employment soon after an employment offer is made. Also, employment offers by employers that qualify as institutions of higher learning or affiliated nonprofit entities, nonprofit research organizations, or government research organizations, are considered "cap exempt." Canadian and Mexican professionals may qualify for employment under NAFTA. As such, in certain circumstances, an alternative to an H-1B petition may be more cost-effective and have a higher chance of success without concern over whether the H-1B cap has been exhausted for the fiscal year.

With less than 3 months to go before the April 1 filing commencement date, any U.S. employer who is considering employment for a degreed foreign national should immediately seek assistance from an experienced immigration practitioner to determine strategy and timing. The Immigration team at Barclay Damon LLP is ready to assist with your U.S. Business Immigration needs. We are well versed in the nuances of the H-1B category and have vast experience in preparing and filing these petitions.

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