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USCIS Confirms 2018 H-1B Cap Has Been Reached

The agency will hold lotteries to select randomly which applications will make it to processing.

US Citizenship and Immigration Services (USCIS) announced this morning that the 2018 cap for H-1B petitions has been reached. This is of course not unexpected news, as it had been predicted by the agency. The precise number of filings is not yet known, but USCIS made it clear that it has reached the congressionally mandated limit of 65,000 new H-1B petitions for fiscal year 2018, and has also received a sufficient number of H-1B petitions to meet the separate 20,000 petition cap for holders of US advanced degrees.

As in past years, USCIS will now conduct two lotteries: the first for the 20,000 cap, and the second for the 65,000 cap. Petitions not selected in the first lottery will be included in the second lottery. USCIS did not announce when these lotteries will take place, but they could be held as early as this weekend. USCIS will reject all petitions not selected in the lottery and return filing fees for all these unselected cap-subject petitions that are not duplicate filings. Petitions that are selected in the lottery will move forward in the petition process.

USCIS will continue to accept and process H-1B petitions that are otherwise exempt from the cap, such as extension petitions filed on behalf of current H-1B beneficiaries who were previously counted against the cap. It should be noted that on April 3, 2017, USCIS suspended premium processing for all H-1B petitions, including cap-exempt petitions, for up to six months. It will therefore take longer than in past years to confirm whether a petition has been selected for processing, since the issuance of H-1B receipts for selected petitions may take several weeks or more. If, however, USCIS cashes a check for the filing fees associated with an H-1B petition, that will be an indication that the petition has been selected for processing.

USCIS has stated that it will continue to accept and process those petitions that are filed to

  • extend the period of stay of a current H-1B beneficiary,

  • change the terms of employment of a current H-1B beneficiary,

  • allow a current H-1B beneficiary to change employers, and

  • allow a current H-1B beneficiary to work concurrently for an additional H-1B petitioner.

Further and ongoing updates from USCIS are expected.

Copyright © 2017 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

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A. James Vázquez-Azpiri is a partner in Morgan Lewis's Labor and Employment Practice. Mr. Vázquez-Azpiri focuses his practice on business immigration law, assisting corporate clients with hiring and retaining foreign employees with regard to labor certifications, specialty occupation petitions and intra-company transfers. Mr. Vázquez-Azpiri is also a leading expert on immigration law compliance in the context of mergers, acquisitions and corporate restructuring. Mr. Vázquez-Azpiri helps clients think and work proactively by providing them with traditional compliance...

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