H-1B Applications Open Today

By John Miano on April 2, 2018

Today is the first day that that DHS will accept petitions for H-1B visas for work starting on October 1, 2018. As usual, by today USCIS is expected to have hundreds of thousands of petitions for visas subject to the 85,000-visa quota (plus additional petitions for visa not subject to the quota).

The press is full of complaints that the Trump administration will apply unprecedented scrutiny to those visa petitions. The reality is that the only reason the level of scrutiny is unprecedented is because the Trump administration is the first to apply any scrutiny to visa petitions. Previously, the visa process was a rubber-stamp operation, with nearly all petitions being approved. In fact, it is unlikely that USCIS will ensure that all petitions comply fully with the law.

According to the regulations, yesterday (April 1) marks an important date in the visa process. Pursuant to 73 C.F.R. ยง 655.730(b), April 1 is the first day an employer could submit a Labor Condition Application for an H-1B visa starting October 1, 2018.

The Labor Condition Application is a prerequisite for the H-1B petition. As such, it is impossible that any of the hundreds of thousands H-1B petitions subject to the quota sitting at USCIS right now could possibly have a valid Labor Condition Application. If the Trump administration followed the law fully, all of those petitions would be rejected out of hand.

The general whining over H-1B petition processing flows from the fact that the Trump administration is applying any scrutiny at all; not that the Trump administration is ensuring full compliance with the law.