Companies seeking H-1B visas for foreign workers with special expertise should start preparing now to submit petitions in annual H-1B visa lottery in April—if they haven’t already.

While a few months may seem like plenty of time to prepare an H-1B petition, devising a strong approach, providing compelling evidence, and formulating a backup plan all require time, effort, and care.

All of that is particularly important now: U.S. Citizenship and Immigration Services (USCIS) has stepped up scrutiny of petitions in the past year. The agency has issued more “requests for evidence”—a demand for additional proof that a candidate deserves an H-1B visa. What’s more, the number of H-1B petitions that USCIS has rejected has increased, according to the San Francisco Chronicle.

The Alcorn Immigration Law team stands ready to help your company and the H-1B candidate devise the best strategy.

H-1B Lottery

The H-1B season starts on the first Monday in April for the following fiscal year, which begins on Oct. 1. This year, USCIS will begin accepting H-1B petitions on April 2.

USCIS issues a notice when it receives enough petitions from for-profit companies to reach the annual cap of 85,000 H-1B visas. Of those, 20,000 are reserved for candidates with a master’s degree or higher. USCIS uses a computer-generated random selection process—or “lottery”—to select enough petitions to reach the 20,000 cap for candidates with a master’s degree or higher first. Any unselected petitions go into the regular lottery for the remaining 65,000 H-1Bs.

Each year, U.S. Citizenship and Immigration Services typically receives far more H-1B petitions than the number of H-1B visas available. Last year was the first time in five years that the number of H-1B petitions submitted has declined. USCIS received 199,000 H-1B petitions in 2017, down from more than 236,000 petitions received in 2016.

Last year, USCIS suspended premium processing of H-1B petitions, but it recently informed the American Immigration Lawyers Association that it currently does not have plans to do so again this year. [UPDATE: USCIS announced it will temporarily suspend premium processing starting on April 2, 2018.]

The following individuals are not subject to the H-1B cap:

• Foreign workers who currently hold H-1B status. That includes extensions of stay, amendments, and change of employer petitions unless the previous employer was a “cap-exempt” entity. Cap-exempt entities include universities and nonprofit research institutions.
• Those who have previously held H-1B status within the last six years and who have not left the U.S. for at least a year since holding H-1B status.
• Citizens of Chile and Singapore may qualify for an H-1B1 specialty occupation visa, which is an H-1B visa earmarked specifically for individuals from those countries.

Heightened Scrutiny

President Trump’s “Buy American and Hire American” executive order is behind the intensified review of H-1B petitions. The order calls for enacting policies that ensure “the most-skilled or highest-paid petition beneficiaries” receive H-1B visas. 

We are advising clients they should:

• Recognize that securing an H-1B for a current or prospective employee will require more time and effort to make a strong case that the H-1B candidate has specialized knowledge, education, and training for the specialized position.
• Identify current or prospective employees who may require sponsorship and would qualify for an H-1B visa.
• Review the job description and duties, salary, and all work locations of the current or prospective employee.
• Consider paying a higher salary to H-1B candidates.
• Remain in close contact with an immigration lawyer and the H-1B candidate to ensure an employee maintains her or his legal status if already in the U.S. and timely access to additional documents and information.

We Can Help

The Alcorn Immigration Law team helps employers and their current or prospective employees with filing H-1B petitions. We also help companies and individuals devise alternatives if an H-1B petition is not selected in the lottery. Contact us.