By Karine Wenger
It is that time of the year again. U.S. Citizenship and Immigration Services (USCIS) begins accepting petitions for new H-1B “CAP” visas during the first week of April 2018. Each year there is a cap on the maximum number of H-1B visas that will be issued — a 65,000 base cap, plus an additional 20,000 for beneficiaries who hold a U.S. master’s degree or higher. In recent years, the number of new H-1B petitions filed has greatly exceeded the number of available H-1B visas, which has resulted in the USCIS implementing a “lottery,” with only those randomly selected employer petitions being processed. In 2017, USCIS reported to have received over 199,000 H-1B petitions — more three times the number of H-1B visas available. Those fortunate enough to be selected in the lottery would begin employment in H1B on October 1, 2018.
This year, however, it is more than a numbers game. As promised in his campaign, President Trump signed multiple controversial executive orders to “tighten” immigration laws. Among these, on April 18, 2017, President Trump signed the Buy American, Hire American (“BAHA”) — two weeks after the filing date of H-1B “CAP” cases. The order directed federal agencies to suggest reforms to ensure H-1B visas are given to the “most-skilled or highest paid” beneficiaries. The order also requested the agencies propose new rules for preventing fraud and abuse of work visas. While there have been no legislative or regulatory reforms to the H-1B visa program just yet, in 2017, employers saw an unprecedented rise in the number of Requests for Evidence (RFEs) issued by the USCIS for H-1B CAP cases. Data provided by USCIS shows that between January 1 and August 31, the agency issued 85,000 RFEs to H-1B visa petitions — a 45 percent increase over the same period last year. In fact, some who were lucky enough to be selected in last year’s H CAP lottery still await a decision on their petition filed about one year ago!
This year’s CAP is likely to be no different. USCIS has already announced it will again suspend its Premium Processing policy for CAP cases — which would have otherwise allowed employers to expedite their cases especially for employees whose status expires before October 1, 2018. Under Premium Processing USCIS must provide a response within 15 days — suspending this policy will presumably allow more time for adjudicators to ‘vet’ each petition. This is a new era of immigration with a level of uncertainty that extends far beyond a numbers game!
Karine Wenger is a partner with Fragomen, Del Rey, Bernsen & Loewy, LLP.
This information is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have legal matter, it is best to consult the advice of an attorney. You can get referred to an attorney for a free 30 minute consultation through the San Diego County Bar’s Lawyer Referral & Information Service at www.sdcba.org/ineedalawyer or by calling 1 (800) 464-1529.
Do you have questions about immigration law?
On April 26 at the San Diego Central Public Library, a panel of attorneys under the SDCBA’s Immigration Law Panel will present an overview of current issues, concerns, and how to find assistance and resources. Attorneys will also answer questions from the public during this informal presentation, the sixth in the SDCBA Lawyer Referral and Information Service(LRIS)’s new monthly Coffee with Counsel Program. For details and to register, click here.