H-1B Cap Reached for FY 2018

USCIS reminds employers that premium processing is suspended for six months

Roy Maurer By Roy Maurer April 7, 2017
H-1B Cap Reached for FY 2018

The congressionally mandated H-1B visa cap for fiscal year (FY) 2018 has been met five days after the application window opened April 3, announced U.S. Citizenship and Immigration Services (USCIS). The cap on petitions filed under the U.S. advanced degree exemption was also reached.

USCIS announced April 7 that it received more than 65,000 cap-subject H-1B petitions and more than 20,000 H-1B petitions for individuals holding a U.S. master's degree or higher. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

U.S. employers use the H-1B program to hire high-skilled foreign workers. Last year, USCIS received 236,000 visa petitions for FY 2017, a new record. In FY 2016, the U.S. received 233,000 petitions.

[SHRM members-only toolkit: Obtaining U.S. Employment Visas]

"Of course, it is not surprising that the H-1B cap has been met for fiscal year 2018," said Beth Carlson, an immigration attorney and counsel in the Minneapolis office of law firm Faegre Baker Daniels. "This was expected based on the last several years, the pent-up demand that remains for H-1B work visas, and the concerns and uncertainty that employers have on what the H-1B program may look like for fiscal year 2019."

USCIS will use a computer-generated process, also known as the lottery, to randomly select petitions to meet the caps. The date of the lottery is not yet known.

Petitions under the advanced degree exemption will be randomly selected first. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general cap.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. However, the agency reminded employers that premium processing has been suspended for up to six months for all H-1B petitions, including cap-exempt petitions.

"It is disappointing that USCIS reconfirmed [their] position on the suspension of premium processing for all types of H-1B cases," Carlson said. "Many H-1B cases not subject to the cap reached today require premium processing for changes in employment, changes in status for cap-exempt cases, and for urgent travel issues. USCIS should reexamine this policy about the suspension of premium processing and bring back premium processing for all H-1B cases as quickly as possible."

The agency announced that petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will not be counted toward the FY 2018 H-1B cap.

USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States.
  • Change the terms of employment for current H-1B workers.
  • Allow current H-1B workers to change employers.
  • Allow current H-1B workers to work concurrently in a second H-1B position.

Calls for Reform

Advocates for high-skilled foreign workers point to the announcement to show that demand for high-skilled talent dramatically outpaces supply.

"The announcement reflects continued strong employer demand for access to talent and serves as an important reminder of the need to reform the outmoded H-1B system," said Rebecca Peters, director of government affairs at the Council for Global Immigration (CFGI), a nonprofit trade association committed to advancing high-skilled employment-based immigration. "The current process, which sets arbitrary caps and selects winners and losers by chance, is failing American employers and employees. CFGI is committed to advancing bipartisan reforms that prioritize visas for immigration-compliant employers that invest in the U.S. workforce and reflect market demand."

Only around 30 percent of H-1B applicants "win" the H-1B lottery, "keeping thousands of the best and brightest high-skilled immigrants from around the world out of our U.S. workforce," said Todd Schulte, president of FWD.us, an advocacy organization led by the tech community to promote immigration reform.

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