As we turn the page on another year, it’s once again time to start preparing for the upcoming H-1B visa lottery. Each year, demand for the H-1B nonimmigrant visa greatly exceeds supply. In 2018, employers filed 190,000 petitions for 85,000 visas. So, employers should once again expect U.S. Customs and Immigration Service (USCIS) to accept petitions for only a few days when it opens the process the first Monday in April. In years past, USCIS stopped accepting petitions after 5 days. If they do the same this year (which is expected), the window for filing will be Monday, April 1, 2019, to Friday, April 5, 2019.
Although this is three months away, employers should start planning now and have everything in place well before April 1st to ensure their petitions will actually make it in the lottery drawing. Each year, many employers scramble at the last minute trying to pull together labor certifications, support letters, copies of credentials or whatever the case may be, only to fail to obtain a key requirement and then have to wait a year to start the process again. And this year’s lottery has a new wrinkle creating more uncertainty: the Trump Administration has proposed changes to the program that would modify the selection process and require employers to register online. The administration wants to implement these changes before the upcoming lottery, but the rules have yet to be finalized and the proposed online network is not in place. This has some people worried that the rush to implement these changes will lead to electronic errors and last-minute changes to the process, costing petitioning employers more time, money and stress.
Therefore, this year it is more important than ever for employers to get an early start on the following:
- Identify open positions and potential beneficiaries (such as F-1 employees on OPT that will expire in the next year);
- Review job duties and update job descriptions if necessary;
- Obtain prevailing wage information for the position;
- Begin gathering necessary documents from the foreign national; and
- Prepare a financial analysis and budget.
Employers should work closely with legal counsel early in the process to ensure the position qualifies under the H-1B program and that candidates meet the qualifications. Your attorney can also explore alternative visa options given the chances that the petition may not be selected in the lottery. Finally, starting to prepare now will at least reduce the stress that always accompanies the H-1B cap season.
Neemah A. Esmaeilpour is a partner at Wright Lindsey Jennings in Little Rock. His labor and employment practice includes a focus on employment-based immigration with an emphasis on petitions for foreign-born physicians, academics and researchers. Email him at NEsmaeilpour@WLJ.com.