H-1B Season Hits the Final Stretch for FY2018

With less than six weeks remaining until April, many immigration practitioners across the US are enduring that annual rite of passage known as the H-1B filing season. The fun usually begins in early January (or sometimes late December), when employers begin sending over their list of potential H-1B candidates and the myriad pieces of supporting evidence and documentation needed to make a successful case. Along the way, practitioners will request additional information, speak with concerned employees and managers, and set in motion the process for filing all of their cases within a very narrow window of time.

And the stakes, this year in particular, seem very high. The quota of roughly 85,000 “cap subject” H-1B visas pales in comparison to the recent demand. Last year, the USCIS received over 236,000 H-1B cap-subject petitions during the filing period – which of course, led to the inevitable lottery process (a random “computer-generated” selection algorithm which separates the lucky from the not-so-lucky). Some of the unlucky ones (of which there were roughly 151,000) may try again this year, along with the many foreign student graduates entering the workplace.

To add fuel to the fire, we may see an even greater number of H-1B petitions this year, due solely to the prospect that the H-1B program may soon be changing under the Trump administration.

Now, if you’re reading this blog, you probably already know all of this. Perhaps you’re just taking a well-needed break from H-1B hysteria in an effort to retain (or regain) your sanity. While I applaud such efforts wholeheartedly, I’d like to (briefly) bring you back to earth and discuss a quick practice-management tip as you head into the H-1B home stretch.

The LCA Game

AILA recently published a practice advisory (AILA Doc. No. 13031158 for members) reminding us all of the tricky timing considerations relating to H-1B petitions and LCAs. As practitioners are aware, an LCA cannot be filed earlier than six months prior to the beginning date of employment (which for H-1B cap cases will be 10/1/17).

Under normal (i.e., non-cap) circumstances, you might plan your LCA start date to match your H-1B petition by submitting it exactly 6-months in advance of the 10/1 start date (which would mean filing on April 1). The problem, of course, is that LCAs can sometimes take 7 days or longer to be certified, and by that time, the USCIS will most likely have received more than enough petitions for this year’s cap. In addition, practitioners must also plan for potential delays with the DOL’s iCert site (which in past years came to a crawl due to the high volume of submissions).

Since no one has the luxury of waiting to file the LCA until the last minute, the advisory recommends submitting your LCA with an earlier intended start date (e.g., sometime in September) and setting the expiration date three years out accordingly. This means you’ll need to cut your H-1B petition validity period short as well (matching the end date of the LCA), but it sure is a whole lot better than missing out on the H-1B lottery altogether.

One final note on timing considerations: since April 1 falls on a Saturday this year, the USCIS will not accept H-1B petitions until Monday, April 3rd. And if the agency receives enough petitions to meet the cap during the first five business days (which they surely will), Friday April 7th will be the last day on which the USCIS will accept an H-1B cap-subject petition.

Case Management Tip

As illustrated above, H-1B cap cases have very unforgiving timelines – a fact which is exacerbated by the volume of petitions that you’re likely preparing. In order to ensure that none of your cases falls through the cracks, experts recommend keeping a detailed activity log of all pending H-1B cases which clearly sets out the required tasks, preceding dependencies, and dates upon which the activity was completed. So for example, you may choose to note the following benchmarks during the life of your H-1B petition (each as applicable):

  • Date opened
  • Questionnaire completed
  • Petitioner information and documents received
  • FN documents received
  • Prevailing wage request submitted/received
  • Education evaluation submitted/received
  • Employment verification letters submitted/received
  • LCA provided to employer for posting
  • LCA posting confirmed
  • LCA filed
  • LCA certified
  • Forms and docs prepared
  • Petition sent to employer
  • Signed petition received
  • Petition filed with USCIS

A well-designed immigration case management system can largely automate this process through the use of pre-defined activities which are customized (by you) to meet your own unique practice style and procedure. You’ll also want to consider using a reminder-based system which sends you alerts of important filing deadlines (such as the LCA). And most busy practitioners also rely heavily on reporting too – segmented by case type, petitioner, or even specific workers in your office.

Want more information on using an online case management system? Please contact us today to learn about the Edge solution from LawLogix.

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John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.