FY2018 H-1b Filing Window Opens April 3

USCIS will accept employer petitions for the FY2018 H-1b visa allotment from April 3 to April 7, 2017, for an October 1, 2017, employee start date. In recent years USCIS has received sufficient numbers of petitions during the first week of availability to account for the entire year’s allotment of 85,000 H-1b visas. Any H-1b petitions filed after the 5^th business day in April for new FY2018 visas will be rejected, and those timely filed will be included in lotteries to determine which petitions will be accepted for processing.

In April 2016, approximately 250,000 H-1b visa petitions were filed, of which USCIS probably selected 93,000 or so, to account for denials and withdrawals. The trend has been for H-1b visa demand to increase each year as the economy improves and petitions not previously selected are refiled.

This is an unusual year though. For one thing, there seems some momentum developing for legislation changing the H-1b program. Some want to kill it (won’t happen) others to expand it (possible), but there will almost certainly be new employer obligations. These might only affect employers with large numbers of H-1b workers, or may impose a much higher base wage requirement than is in effect now, or both. Either way, it is not inconceivable that this will be the last H-1b lottery held, or one of the last.

A wild card is how the largest IT outsourcing consultancies will approach the FY2018 H-1b lottery. This group has been said to account for up to one third of new H-1b visas approved each year, and a plurality of a new petitions filed each year. They are under considerable bipartisan political pressure, and an easy target of Congressional and Executive wrath. Moreover, the new President has demonstrated a willingness to take extraordinary measures to achieve his immigration policy objectives. Even where H-1b visa are approved (a process subject to judicial review) the approval of visa stamps permitting entry to the US is subject to the near unfettered discretion of the State Department. An approved H-1b petition is of no immediate value if the beneficiary is refused a visa and can’t report to work.

So does this new reality mean that the largest IT consultancies will file fewer FY2018 H-1b petitions than in years past? Not an impossible outcome. Then again, knowing that last call may be approaching, they may double down on petitions anyway.

Bottom line, though, is that the annual H-1b lottery is still the only game in town. Companies that need to file H-1b petitions as the best option available for valuable employees should still strongly consider doing so. The latest an FY2018 petition can reasonably be started and still make the April 7 filing cutoff is March 23.