Start Your Planning for H-1B Cap Cases

Start Your Planning for H-1B Cap Cases

The filing period for “new” H-1B petitions to be counted against the annual H-1B cap for Fiscal Year (FY) 2016 will begin on April 1, 2015. Cap-subject H-1B petitions will have an employment start date of October 1, 2015. In preparation for the opening of the FY 2016 H-1B filing period, employers are strongly encouraged to begin identifying current and future employees who will need H-1B visa status to be legally employed in the United States. Individuals currently employed as F-1 students or J-1 trainees, individuals seeking to change to H-1B status from another visa status (such as L-1, TN, O-1, or E-3), and individuals outside of the United States commonly require a cap-subject H-1B petition be filed on their behalf.

In past years the number of H-1B petitions filed on April 1st has far exceeded the number of available visas and USCIS has conducted a lottery to determine which cases USCIS processes. Only cases received by USCIS during the first five business days of April are included in this lottery, so it is imperative that we file all new H-1B petitions in a timely fashion.  In order to be sure that we file all of our clients’ cases on time, we are beginning the process now. Please read the following discussion of the H-1B cap process and consider whether you or your company needs to file an H-1B petition on April 1, 2015.

Who Needs to File an H-1B Petition on April 1st?  

Only “new” H-1B petitions are subject to the numerical cap and therefore must be filed on April 1st. If a person was previously granted status as an H-1B nonimmigrant and has not spent a full six years in the United States in H-1B status, then an H-1B petition filed on behalf of that person is not subject to the cap. This includes H-1B extensions, changes of employer and amendments. It also includes H-1B petitions filed on behalf of people who are outside of the United States but who have previously been approved for H-1B status or issued an H-1B visa in the past.

How Does the USCIS Process Work?

USCIS will begin accepting H-1B petitions subject to the FY 2016 cap on April 1, 2015. The H-1B cap for FY 2016 is 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000.
Last year, U.S. employers filed 172,000 new H-1B petitions in the first five business days, which meant that fewer than 50% of the cases were accepted for processing. We expect that there will be a similar or greater demand for new H-1B cap petitions this year.

If USCIS receives more H-1B petitions than it can accept during the first five business days (April 1 to April 7), which is highly likely this year, USCIS will use a computer-generated random lottery system to select the petitions that it will process. Presuming that the random lottery is again required in 2015, USCIS will reject petitions that are not selected in the lottery, as well as petitions received after April 7, 2015. USCIS will first conduct a random lottery process for the petitions filed on behalf of individuals with a U.S. master’s degree or higher (advanced degree exemption), and then any advanced degree petitions not selected as part of the 20,000 exception will be considered among the random lottery process for the 65,000 limit.

H-1B petitions that are accepted in the lottery will receive a “receipt notice” by mail from USCIS. H-1B petitions that are rejected will be returned to the employer (or the immigration law firm), along with uncashed filing fee checks. It may take until the end of May 2015 to know for certain if a particular H-1B petition has been selected in the random lottery, or has been rejected.

H-1B cap petitions can also be filed with a Premium Processing Request (which guarantees review of the petition by USCIS within 15 calendar days and issuance of an approval, denial, or Request for Evidence), but the 15 day clock for adjudication of such Premium Processing H-1B petitions will likely begin only on approximately April 15, 2014, based on last year’s experience. USCIS should issue receipt notices for all H-1B cap petitions filed with Premium Processing requested by the end of April 2015. Filing an H-1B petition requesting premium processing will not increase the chances of obtaining an H-1B under the cap. However, as noted above, one benefit of filing a cap subject H-1B petition with a request for premium processing is that a receipt notice will usually be issued faster than if filed under regular processing. Therefore, the petitioner and beneficiary should learn more quickly whether or not the petition has been chosen in the lottery.

What Employers Can Do Now to Prepare for the FY2016 H-1B Cap

Since the annual fiscal year limitation for H-1B visas is expected to be reached during the first week of the filing period again in FY2016, employers should immediately begin identifying individuals for whom H-1B sponsorship will be needed to allow sufficient time for H-1B petition preparation, including the time required to file and receive certification of the Labor Condition Application (LCA). The LCA, which is submitted online to the U.S. Department of Labor (DOL), is a prerequisite to a properly-filed H-1B petition. The DOL can take up to 10 days to certify an LCA. Employers must take this processing time into consideration to ensure timely approval of the LCA and the ability to mail the H-1B petition on March 31, 2015 for delivery to USCIS on April 1, 2015. Employers are advised to contact the McCown & Evans attorney with whom you normally work as early as possible to initiate any cap-subject H-1B petitions.

Disclaimer

This information is for general use only. You should consult a licensed attorney for legal analysis and advice regarding the specific details of your case.