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Why the FY-2018 H-1B Cap Season Is Unlike Any Other

14 Mar

It’s a typical Saturday morning in March, and immigration attorneys and their staff at Foster LLP in Austin and Houston, just like their nationwide colleagues, are feverishly working to prepare Labor Condition Applications (LCA) for filing with the U.S. Department of Labor (DOL), and H-1B petitions for filing with U.S. Citizenship & Immigration Services (CIS).  It’s the annual “H-1B cap rush,” when employers and their attorneys scramble to file H-1B petitions in the first week of April, for a chance at securing one of 85,000 new H-1B visas available for the upcoming fiscal year that starts October 1st.

As in recent years, the 2017 H-1B filing season is hectic in part because it involves a rush of case preparation for filing at the only time during the year when filings are accepted for new H-1B visas under a quota that falls woefully short of annual demand.  But there’s also something about March 2017 that’s different from prior years – the end of premium processing – at least for an undetermined period of time.

Premium processing is a rapid adjudication service offered by CIS.  For payment of an additional $1,225 CIS filing fee, the CIS guarantees action on the petition within 15 calendar days, or your money back.  This is a critical service due to lagging CIS adjudication times approaching a year for even the simplest H-1B extension petitions.  A short suspension would not be troublesome.  In fact, the CIS typically suspended the premium processing service for short periods of time during the H-1B cap rush each year in order to allow time to conduct the “H-1B lottery” and receipt in the roughly 85,000 H-1B petitions lucky enough to win.  Once the lottery is conducted and the petitions are receipted, the CIS typically resumes the premium processing service, meaning all H-1B cap petitions filed with a request for premium processing should then be adjudicated within 15 calendar days.

Not so this year.  This year the suspension of premium processing applies to all H-1B petitions, even H-1B extensions with the same employer, and could extend for several months.  And because the suspension is potentially indefinite and applies to all H-1B extension and change of employer petitions as well, employers and their attorneys must also rapidly prepare H-1B extensions for filing with a request for premium processing in advance of April 3rd in order to have a chance at rapid adjudication by CIS.

This added “H-1B extension rush” on top of the annual fiscal year “H-1B cap rush” is challenging to say the least.  But there’s more.  This year there are even more petitions to prepare because employers are taking appropriate measures to file new H-1B cap petitions for qualifying TN employees, who currently work pursuant to the North America Free Trade Agreement (NAFTA).  In previous years immigration attorneys might recommend proceeding with H-1B petitions for qualified TN applicants in advance of starting the U.S. permanent residency process, because H-1B status allows for immigrant intent while TN status does not.  This year, however, the recommendation to file H-1B petitions for TN nonimmigrants is broader, and it’s motivated by the possibility that TN work authorization may become unavailable should President Trump follow through on suggestions that he might renegotiate or withdraw from NAFTA.

Call it a perfect storm, an unholy triumvirate of H-1B madness, or just a day in the life of an immigration attorney in 2017.  Whatever you call it, it will all be over soon . . . except the CIS adjudication.  Without premium processing, you will have to check back with us in about six to eight months for that.