Barclay Damon
Barclay Damon

Legal Alert

Preparing for the 2019 H-1B Cap Season

The annual H-1B cap filing season is upon us again. April 1, 2019, will be the first day this year that US employers can file H-1B petitions on behalf of their foreign workers who are subject to the annual cap. If approved, the foreign nationals will be permitted to commence work in H-1B status on October 1, 2019.

H-1B visas are available for foreign nationals offered employment opportunities for “specialty occupations” that require at a minimum a bachelor’s degree or its foreign equivalent. H-1B status is available for an initial period of stay of up to three years and a maximum total time period of six years, with possible extensions in certain circumstances.

For those who have already been counted against the cap or those employers considered cap-exempt, such as institutions of higher education, not-for-profit research organizations, and government research organizations, H-1B petitions may be filed at any time. For those subject to the cap, petitions must be received by US Citizenship and Immigration Services beginning April 1, 2019.

Only 65,000 H-1B visas are available per fiscal year, with an additional 20,000 spots available to those holding advanced degrees from US universities. The petitions will be chosen on a lottery basis, and once enough petitions have been received to reach the annual limit, USCIS will not be able to accept any additional cap-subject H-1B petitions. One change to this year’s H-1B initial selection process is that instead of first choosing from the advanced-degree pool, the 65,000 slots will be selected and filled first. By reversing the order of selection, it effectively results in those H-1B applicants with US master’s degrees or higher having an even better chance of being chosen in the H-1B lottery.

It is important for employers interested in the H-1B category to be mindful of the filing timeframe and the need to complete preparation and processing of all required documentation and evidence by the end of March 2019. It is also important for employers to keep alternatives to H-1B visas in mind. For example, if a potential new employee already holds H-1B status from a prior employer, that person may not be subject to the cap, and may instead be eligible to start working upon filing a change-of-employer petition. Canadian and Mexican professionals may qualify for employment under the TN nonimmigrant category. Australian citizens are able to utilize the E-3 category as an alternative to the H-1B.

Employers who are considering employment for a degreed foreign national should seek assistance from an experienced immigration practitioner to determine strategy and timing.


If you have any questions regarding the content of this alert, please contact Melle Fabian, associate, at mfabian@barclaydamon.com, or another member of the firm’s Immigration Practice Area.