On Friday, April 6, 2018, USCIS announced that it once again reached the limit for H-1B Petitions submitted for the Fiscal Year 2019 Regular and Master's Cap. While a surprise to no one, the U.S. Citizenship and Immigration Services (USCIS) confirmation that the number of Petitions filed exceeds the number of new H-1B visas available for October 1, 2018 start dates signals that the Agency will proceed with its randomized lottery to determine which petitions will be selected for adjudication on their merits. To qualify for the Cap Lottery, the H-1B Petition must have arrived at USCIS between April 2 and April 6, 2018.
As in past years, USCIS will first select the 20,000 H-1B Petitions that qualify under the U.S. Master's Cap. All U.S. Master's Cap Petitions that are not selected will be pooled with the Regular Cap Petitions, of which 65,000 will be selected. Unselected H-1B Petitions will be returned along with their government filing fees.
We will be able to confirm whether or not a case has been selected within 1 – 1.5 months of USCIS conducting the H-1B Cap Lottery. However, similar to last year, USCIS recently announced that it has suspended Premium Processing for all H-1B Cap Petitions through September 10, 2018. Therefore, it is unlikely that we will receive decisions on H-1B Cap Petitions until the summer.
Importantly, H-1B Premium Processing remains in effect for H-1B Petitions that are not subject to the H-1B Cap, including Petitions submitted by statutorily exempt employers (e.g. universities, teaching hospitals), H-1B Extensions, H-1B Portability Petitions, and new employment for individuals who have been previously subjected to the Cap. Likewise, Expedited Processing remains available to all H-1B Petitions, even those submitted in this year's Cap.
In the meantime, H-1B Beneficiaries will need to be patient as USCIS adjudicates their H-1B Petitions selected in the Fiscal Year 2019 Lottery. For F-1 Students presently employed pursuant to Post-Completion Optional Practical Training ("OPT") that will expire later this spring or this summer, selection in the H-1B Lottery automatically extends their work authorization while their H-1B Cap Petitions remain pending thanks to the Cap Gap Provision. Other F-1 students may need to apply for OPT or for a STEM OPT Extension, while Beneficiaries present in other statuses or currently outside the United States will need to take appropriate measures.
However, depending on the posture of your H-1B Petition, selection in the Fiscal Year 2019 H-1B Cap Lottery may trigger affirmative duties on your part. On the other hand, if not selected, you may need to act quickly to maintain a nonimmigrant status in the United States. In any event, we are Green and Spiegel are here and ready to assist should you have the need.
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