FY 2018 H-1B CAP Cases Update

Practice Areas

By: Lihua Tan

On April 7, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.

On April 11, USCIS used a computer-generated random selection process  to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

Here are some highlights for this year’s H-1B CAP filing:

  1. USCIS received 199,000 H-1B CAP petitions during the filing period. Compared with last year’s H-1B CAP filing number which was 236,000, there were 37,000 less H-1B CAP cases filed this year. Accordingly, there is a greater chance for the case to be selected in the lottery than last year. Our office started to receive H-1B CAP case receipt notices from April 17, 2017.
  2. Since April 3, 2017, USCIS has been temporarily suspended Premium Processing (PP) for all H-1B petitions, including cap-exempt petitions, for up to six months. On March 31, Nebraska Service Center (NSC) confirmed that it received record high volumes of I-129 premium processing filings and experiencing delays in data entering information into USCIS systems due to the volume. In addition, our office received returned PP checks for some H-1B cases filed before March 31 which showed that USCIS is unable to honor the PP request and is returning the PP filing funds. Therefore, there is a slight chance that the Premium Processing Service will resume before Oct 1, 2017.
  3. On April 3, 2017, USCIS issued a policy memorandum that superseded and rescinded an old NSC memorandum with guidance on H-1B computer related positions. The memo stated that a position cannot simultaneously have a job classification and pay rate at the low end of the industry salary range, while at the same time listing specific job requirements and skills that are more complex and specialized. In addition, though the memo focuses on Computer Programmers, it delivered a clear message that in order to qualify for an H-1B, the employer must show that the position requires theoretical and practical application of a body of highly specialized knowledge, which requires the attainment of bachelor’s degree or higher in a specific specialty. We estimate that overall, more “Specialty Occupation” RFEs may be issued by the USCIS this year.
  4. In addition, on April 3, 2017, the Justice Department and USCIS announced that they will target at H-1B visa fraud and abuse to protect US workers from being discriminated. On April 4, 2017, the Department of Labor also announced actions it plans to take in an effort to ensure that American workers are not discriminated against by the H-1B program. Therefore, there may be more audits, onsite visits on CAP case employers before or after the cases are adjudicated this year. Employers should be prepared.
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