USCIS announced today, April 6, 2018, that the FY 2019 H-1B cap is now closed because it has received a sufficient number of H‐1B petitions to reach the 65,000 statutory cap as well as the 20,000 advanced degree exemption. The announcement did not provide details about the total number of H-1B petitions filed. USCIS will reject any further cap‐subject H-1B petitions received seeking an employment start date in FY 2019 (Oct. 1, 2018 or after). With this year’s H-1B cap closed, employers will be unable to file new H-1B petitions subject to the cap until April 1, 2019, when the FY2020 H-1B cap opens for petitions with a start date of Oct. 1, 2019. Petitions that are otherwise exempt from the cap, such as H-1B extensions, H-1B ports to new employers, or H-1Bs filed for exempt employers, will continue to be accepted and processed by the USCIS.
The USCIS will use a computer‐generated random selection process (commonly known as the “lottery”) for all FY 2019 cap‐subject petitions received through April 6, 2018. USCIS has not released a date the lottery will be completed due to the high number of petitions received. USCIS will conduct the selection process for 20,000 advanced degree exemption petitions first. All advanced degree petitions not selected during the initial lottery will then become part of the random selection process for the 65,000 statutory cap. USCIS will reject and return any cap‐subject petition that is not randomly selected along with filing fees. As previously reported, premium processing for cap-subject petitions remains suspended. It is expected that the temporary suspension will last until Sept. 10, 2018. USCIS continues to accept premium processing requests for non-cap subject H-1B petitions.
Rejection rates under this year’s H-1B cap is expected to be very high. Employers may want to consider conducting a proactive assessment of alternative options for any employee who it has sponsored under this year’s cap, especially since next year’s cap will not open until April 1, 2019, for Oct. 1, 2019 start dates. Such contingency plans include: (a) reviewing alternative work visa options; (b) determining whether a student candidate who holds F-1 Optional Practical Training (OPT) work authorization is eligible for a 24-month OPT extension because the candidate holds a U.S. Science, Technology, Engineering or Math (STEM) degree and the employer is enrolled in E-Verify; (c) having the employee work abroad at a related foreign entity of the U.S. company and returning to the country after a year on a L-1 visa; or (d) exploring whether the candidate can enroll in a U.S. academic program and secure U.S. work authorization.
GT will continue to monitor this situation and provide new information as it becomes available. For additional information about the H‐1B cap or a particular H‐1B case, please contact your attorney.
*Not admitted to the practice of law.