H-1B Odds Are Better This Year
by Foster LLP, on Immigration Updates
U.S. Citizenship & Immigration Services (USCIS) recently announced that the CIS received 190,098 FY-2019 H-1B petitions during the filing period from April 2 – 6, 2018. This total number includes 94,213 filed under the Regular Cap and 95,885 filed under the Master’s Cap. The annual H-1B quota is 85,000, which includes petitions eligible under the Regular Cap and Master’s Cap. Based on the number of petitions filed, the overall estimated chance that a particular petition will be selected under the quota is approximately 45%, though petitions filed under the Master’s Cap have a chance first under the Master’s Cap and then, if not selected, another chance under the Regular Cap.
While a 45% chance of success falls short of what it would take to adequately meet current economic demand, these odds are better than in recent years and should give H-1B hopefuls just a little more hope of being selected.
USCIS has begun issuing receipt notices for those petitions selected under the quota, but the receipting process could take several weeks. USCIS has also temporarily suspended premium processing for all H-1B cap petitions, so the ultimate time frame for adjudication of selected petitions is expected to be about 6 months or possibly even longer. Premium processing is currently expected to resume in September.
Petitions Not Subject to the Annual H-1B Quota
Employers may continue to file petitions not subject to the annual H-1B quota. Specifically, the following petitions may be filed even though the H-1B cap has been reached:
- H-1B Petition Extensions and Amendments for existing H-1B employees;
- H-1B Change of Employer petitions for candidates counted under a previous year’s H-1B cap who hold H-1B status and are seeking a change of employer;
- H-1B Petitions on behalf of employees of institutions of higher education;
- H-1B Petitions on behalf of employees of Nonprofit Organizations affiliated with institutions of higher education;
- H-1B Petitions on behalf of employees of Nonprofit Research Organizations or Governmental Research Organizations;
- H-1B Petitions on behalf of candidates who were previously granted H-1B status in the past six years and have not left the United States for more than one year after attaining H-1B status; and,
- H-1B Petitions filed on behalf of J-1 nonimmigrant physicians who have received a Conrad 30 J-1 waiver.
Other Work Authorized Categories
Other work authorized categories may be appropriate for beneficiaries not selected under the H-1B quota. These alternate immigration options include:
- H-1B1 category for Chilean and Singaporean specialty occupation professionals;
- TN category for NAFTA professionals – citizens of Canada or Mexico employed in certain professions;
- H-3 for temporary training, especially in preparation for employment with the company abroad;
- L-1 for certain intra-company transferees employed with the company abroad for at least one year in a qualifying role;
- E-1 and E-2 Treaty Trader and Treaty Investor visa categories based on trade or investment treaties;
- E-3 category for Australian specialty occupation professionals;
- O-1 for Aliens of Extraordinary Ability for qualifying candidates; and,
- Under appropriate and limited circumstances, short-term stays as B-1 visitors.
In addition to these work-authorized visa categories, dependent spouses of E and L visa holders are eligible to apply for work authorization. Contact your Foster immigration attorney for more information on potential work authorization for any candidates who have E or L spouses in the United States.