It’s Official: H-1B Skilled Visa Cap Reached Again This Year

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By Laura D. Francis

Employers submitted enough petitions to reach the H-1B cap of 65,000 as well as the extra 20,000 for workers with advanced degrees, U.S. Citizenship and Immigration Services announced April 6.

The highly coveted temporary visas for skilled workers were expected to exceed the cap again this year despite last year’s additional scrutiny of visas petitions by the Trump administration. The exact number of H-1B petitions filed this year isn’t yet available, but it’s likely to be significantly greater than the total 85,000 visas available for fiscal year 2019, which starts Oct. 1.

Last year, employers submitted 199,000 H-1B petitions, a slight drop from the 236,000 submitted the year before.

It’s possible that the number could bump up again this year, as uncertainty over other, similar visa categories could drive foreign workers and their employers to the H-1B program instead. That includes a work permit program for the H-4 spouses of H-1B workers in the green card backlog, as well as Canadians and Mexicans on TN visas, a product of the North American Free Trade Agreement.

The Trump administration is planning to eliminate H-4 work permits, but its formal proposal has been delayed until at least June. The terms of NAFTA currently are being reconsidered. U.S. Trade Representative Robert Lighthizer was scheduled to meet with Canadian Foreign Minister Chrystia Freeland and Mexican Economy Minister Ildefonso Guajardo for formal talks April 6.

Future Changes, Delays

USCIS also has plans to revamp the H-1B program, listing in its most recent regulatory agenda plans to create an electronic registration system for employers seeking H-1B visas subject to the annual cap, as well as regulations to “increase focus on obtaining the best and the brightest foreign nationals.” Neither proposal has yet been released for public comment.

Like last year, employers will be grappling again with the lack of an option for fast-track processing of their H-1B petitions. USCIS earlier announced that premium processing won’t be available for cap-subject H-1Bs until early September, a move that could cause the delay of many workers’ employment.

Premium processing allows employers to pay an extra fee to have their petitions adjudicated within 15 calendar days. But the clock essentially gets stopped if the agency sends an employer a request for evidence—a now-frequent occurrence under the Trump administration. That means premium processing requested in mid-September doesn’t guarantee an approval by Oct. 1, the day when workers subject to the H-1B cap normally would start.

Most H-1B petitions each year, however, aren’t subject to the cap, according to the Migration Policy Institute. Over the past five years, USCIS has approved an average of 212,000 H-1B petitions outside the cap, a combination of extensions, changes of work location, and petitions from employers that are exempt, such as universities and nonprofit research organizations.

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