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Updates on H-1B Program In Light of H-1B Cap Lottery & Recent ‘Buy American, Hire American’ Executive Order

On April 7, 2017, the United States Citizenship and Immigration Service (USCIS) announced that it had received enough H-1B petitions to reach the annual statutory cap of 85,000 visas for fiscal year 2018.

The H-1B classification is a non-immigrant visa which permits U.S. employers to sponsor highly-skilled foreign nationals for temporary work authorization in specialty occupations in the United States.  Specialty occupations are ones that require a Bachelor’s degree or the equivalent for entry into the occupation. Companies in the gaming industry rely on H-1B visas to secure talent and fill employment gaps particularly in technology-related roles.

On April 17, 2017, USCIS announced that it received 199,000 H-1B petitions during the filing period. This year’s filing period began on Monday, April 3, and remained open for the first five business days of the month. The number of H-1B petitions received this year was lower than the numbers received in 2016 and 2015, during which USCIS received 236,000 and 233,000 petitions respectively. On April 11, USCIS completed its computer-generated selection process, or lottery, to select enough applications to ensure approval of the annual statutory maximum of 85,000 H-1B visas.

20,000 visas within the annual statutory cap are reserved for beneficiaries who have obtained an advanced degree in the United States, also known as the master’s cap. The remaining 65,000 visas are available to those with a minimum of a bachelor’s degree (or equivalent) and those that were not initially selected in the master’s cap lottery.

A few weeks ago, USCIS began issuing receipt notices to petitions selected in the lottery. Petitions not selected in the lottery will be rejected and returned to petitioners with their filing fees over the coming weeks.  Next year’s H-1B cap will open on April 1, 2018, for petitions filed with Oct. 1, 2018, start dates.  Companies will be unable to file new H-1B petitions until next year’s cap opens.  Please note that USCIS will continue to accept and process petitions for H-1B extensions, change of employers, or amendments as they are not counted towards the cap.

In addition to the recent H-1B lottery, on April 18, 2017, President Donald Trump signed an Executive Order entitled “Buy American, Hire American” in Kenosha, Wisconsin while visiting the headquarters of Snap-On Tools.

The stated focus of the Executive Order is two-fold: (1) to protect the American economy by encouraging the U.S. government and agencies to concentrate on purchasing goods, products, and materials made in America; and (2) to create higher wages and employment rates for workers in the United States by rigorously enforcing and administering laws governing entry into the United States by workers from abroad.

From an immigration perspective, the “Hire American” prong of the Executive Order focuses on reviewing current U.S. immigration laws. Specifically, the Executive Order requires the U.S. Secretary of State, Attorney General, Secretary of Labor and Secretary of Homeland Security to suggest reforms to help ensure that H-1B visas are awarded to the “most-skilled” and “highest-paid” beneficiaries.

The Executive Order reflects the new administration’s desire to move toward reforms of the H-1B program, but there will be no immediate changes to H-1B program. The Executive Order is vague and does not provide specific timelines for action on the “Hire American” prong. Further, any significant changes to the H-1B program would likely require legislative action.

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About this Author

Ian R. Macdonald, Greenberg Traurig Law Firm, Atlanta, Immigration, Labor and Employment Attorney
Shareholder

Ian R. Macdonald is Co-Chair of the Business Immigration & Compliance Practice and Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. He focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital domestically and internationally, including secondment agreements, benefits transferability, local host country employment concerns and immigration.

Ian and...

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Linnea Porter, Greenberg Traurig Law Firm, Atlanta, Immigration Law Attorney
Associate

Linnea C. Porter focuses her practice on a wide range of business immigration matters, including representing domestic and multinational employers before the U.S. Citizenship and Immigration Services, the U.S. Department of Labor and the U.S. Department of State. Linnea has extensive experience representing and advising employers in all areas of business immigration, including nonimmigrant visa categories (B, E, F, H, J, L, O, TN), permanent residence (PERM, Extraordinary Ability/Outstanding Researchers, Multinational Managers and National Interest Waivers) and DACA.

Linnea also assists multinational employers with global mobility matters. Further, Linnea assists employers with I-9 compliance by providing on onsite training, internal audits and reviews, as well as deploying best practices to minimize exposure and liabilities in the event of government investigations.

Linnea is dual citizen of the United States and Finland. She is conversational in Finnish and Spanish.

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