Planning for H-1B Cap Season Under the Trump Administration

Immigration Update

Date: January 31, 2017

The first week of April is the filing window for H-1B petitions subject to the cap on the number that can be issued. Employers filing applications for the following foreign nationals are subject to the cap:

  • student visa holders seeking conversion to H-1B for the first time;
  • employees with other work-based visas, such as L-1B or TN, seeking conversion to H-1B; and
  • candidates currently outside the United States not yet working for the U.S. employer or working for the U.S. employer abroad.

In the last several years, the number of applications filed has exceeded the number of H-1B visas available. Last year, more than 230,000 applications were filed for 85,000 available visas. This year, the number of petitions filed is likely to increase significantly because of possible changes under President Trump’s administration.

Possible Changes to Immigration Policy That May Increase the H-1B Filings

President Trump and Attorney General nominee Jeff Sessions have called for reform of the H-1B program. Anticipation of possible changes could lead to employers filing H-1B applications this year even if the sponsored employees have several years of work authorization remaining before an H-1B needs to be secured.

Additionally, President Trump has stated that he is committed to renegotiating the North American Free Trade Agreement (NAFTA). NAFTA provides a work authorization for Mexican and Canadian professionals known as the TN classification. Most employees currently working under the TN classification are eligible for H-1B status. Employers of TN employees are contemplating filing H-1B petitions this year so they have an alternative basis for their TN employees’ work authorization if the TN classification is eliminated.

Finally, there is concern that President Trump could reverse President Obama’s November 2014 executive order granting certain H-4 spouses work authorization. Employers of H-4 spouses may want to consider filing H-1B petitions for those individuals who are eligible for H-1B status in order to mitigate the risk of losing their employees’ work authorization.

Alternatives to the H-1B Classification

Employers hiring foreign nationals with STEM degrees should consider registering for the E-Verify program. Participation in the E-Verify program entitles employers to additional work authorization for U.S. university STEM graduates. Foreign nationals who graduate from U.S. universities are eligible for at least 12 months of work authorization known as Optional Practical Training (OPT). Foreign nationals who complete STEM degree programs at U.S. universities and who work for E-Verify employers are eligible for an additional 24 months of work authorization, lengthening the amount of time foreign nationals can work before the H-1B must be secured.

Summary: Employees for Whom H-1B Sponsorships Should Be Considered

Companies that have the following types of employees (or candidates in the pipeline) may want to consider filing H-1B petitions this year in order to mitigate the risk of employees losing work authorization:

  • Student visa holders currently working for the employer under OPT
  • Employees in the United States with the TN classification, H-4 work authorization, or L-1B status that is nearing the end of the five-year maximum stay
  • Candidates for U.S. positions who are outside the United States and would transfer within a global organization or would be a new hire to the U.S. employer

If you have questions about how the Trump administration may affect your global talent management and retention strategies, please contact:

Sarah C. Flannery

Staci M. Jenkins

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgement of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.