Employers wishing to file H-1B cap cases for foreign national employees should initiate work soon in anticipation of the short filing period, which will open on April 1, 2019. The H-1B program allows U.S. companies to employ foreign nationals who hold college degrees in jobs that normally require at least a bachelor's degree in a specific field. Employees for whom employers often sponsor H-1B petitions include foreign students with F-1 visas working on OPT or STEM OPT programs, Canadian or Mexican TN professionals, individuals working with employment authorization documents derived from their spouse's work visa, and candidates from abroad with the required credentials.

Demand for H-1Bs for the new fiscal year commencing October 1, 2019 likely will remain strong, and the H-1B cap quota likely will be filled within days after April 1. As it has done in prior years, USCIS will conduct an H-1B cap lottery to allocate the available visa numbers after the first week of filing. USCIS had hinted that it would implement a lottery pre-registration system in 2019, but in a proposed rule published this week announced that the new system would not be implemented until next year. However, USCIS will "flip" the order it conducts its H-1B cap lottery this year; the lottery for the 65,000 bachelor's degree (or equivalent) H-1Bs will be conducted first, and the lottery for the 20,000 H-1Bs with U.S. master's degrees will be conducted second. USCIS calculates that this approach will result in an increase of 16 percent (5,340 petitions) in the number of foreign nationals selected in the H-1B cap with master's or higher degrees from U.S. institutions.

Universities, nonprofit research centers, and certain related entities are exempt from the H-1B cap as are H-1B extensions and H-1B change of employer petitions for persons who have already been counted against the cap. For these filings, the April 2019 filing window does not apply.

Given the short window available for filing H-1B cap petitions, employers should contact immigration counsel by mid-February if they plan to sponsor an employee to enter H-1B status with an October 1, 2019 start date. Immigration counsel will need to know, at a minimum, these details about each applicant:

  • Name of the employee
  • Immigration status of candidate
  • Position title
  • H-1B job description
  • Wage
  • Job location(s)
  • Resume
  • Academic credentials and related documents

Immigration law is increasingly complex. Administrative policy changes can have far-reaching implications and impose a level of unpredictability. Employers can minimize the negative impact by having qualified legal counsel review immigration history for current and future employees.