August 22, 2019

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H-1B Cap Season Has Officially Begun

On April 1 of each year in recent memory more than 200,000 employers vie for the coveted 85,000 H-1B visas for their foreign professional employees. This year USCIS will begin accepting H-1B petitions subject to annual numerical restrictions on Monday, April 3, 2017 (April 1st falls on a Saturday this year) for the 2018 fiscal year. Since the number of petitions USCIS is allowed to accept by law (known colloquially as the “cap”) will almost certainly be exceeded by the April 7th deadline, USCIS will thereafter conduct a random lottery process in order to determine whose petitions will be accepted and whose petitions will be rejected. Those with U.S. advanced degrees (masters or above) get better odds in the lottery drawing.

Proper and timely H-1B preparation is paramount to success as there are required steps that need to be taken (for example, the filing of an LCA with the Department of Labor) prior to filing the actual petition with USCIS. LCAs are usually reviewed and certified by the Department of Labor within seven (7) days, but such timelines cannot be trusted during the peak of the H-1B season.


The H-1B visa is limited to those employees who will be working in so-called “specialty occupations,” i.e., positions that require at least the attainment of a bachelor’s degree (or its equivalent) in a speci c eld related to the job’s duties. Examples of professions that commonly qualify as “specialty occupations” include those in nance, accounting, engineering, IT, medicine/ healthcare, architecture, and many others. The government allots 65,000 spots for employees with bachelor’s degrees, as well as an additional 20,000 for employees with master’s or higher degrees from U.S.-based institutions.

Employees seeking H-1B sponsorship should discuss the possibility of such sponsorship with their current or prospective employers as soon as possible and such employers should seek a competent immigration practitioner by early March 2017. An employer may le an H-1B petition for either someone already here in OPT or some other status or even for an employee who is not physically present in the United States. Additionally, with careful planning and proper advice, H-1B

With a new administration in Washington this year, we may very well see signi cant changes to the H-1B visa process in time for the 2019 scal year, so it is important to act now.


With a new administration in Washington this year, we may very well see signi cant changes to the H-1B visa process in time for the 2019 scal year, so it is important to act now while there is still a relative amount of certainty and structure involved in the process. The new administration has made immigration a central policy focus and may act upon proposals to either further restrict the H-1B visa cap or add new—and potentially onerous—procedures to the process in order to make it more di cult for employers to successfully hire foreign workers. Therefore, employers may be well advised to get their H-1B petitions in before the new administration has an opportunity to make some major changes to the program.

© Copyright 2019 Murtha Cullina


About this Author

Dana R. Bucin, Murtha Cullina, green card applications lawyer, work visas attorney

Dana R. Bucin is the Chair of the Murtha Cullina Immigration Practice.

She represents businesses and individual clients with a wide range of immigration matters, including green card applications, work visas, student visas, foreign investor visas, asylum, naturalization, religious work visas, as well as various other employment and family-based immigration matters.

As an immigration attorney with a business/corporate legal background, Dana's experience includes counseling foreign investors and entrepreneurs on setting...

Michael J. Bonsignore, Murtha Cullina, Work Based Immigration Lawyer, nonimmigrant visas attorney

Michael J. Bonsignore is a member of the Immigration Practice Group. He represents individuals and businesses with various immigration matters, including assisting clients with obtaining immigrant and nonimmigrant visas abroad and helping businesses navigate the Department of Labor's PERM Labor Certification process. Michael also has extensive experience drafting and preparing all types of employment and family-based immigrant and nonimmigrant petitions for the United States Citizenship and Immigration Services.

Michael received his B.A. from Emerson College and his J.D. from New York Law School.