H-1B Cap Filing Season Begins on April 1, 2016

Miles & Stockbridge P.C.

On Friday April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2017 cap. It is critical that employers begin preparation as soon as possible for H-1B filings for current and prospective employees who need H-1B visa status in order to be employed in the U.S.

By way of background, U.S. businesses use the H-1B program to temporarily employ foreign workers in specialty occupations. Though the H-1B program is often associated with fields such as science, engineering, and information technology, it is also available to foreign workers in accounting, finance, architecture and other fields.

The law imposes an annual limit on the number of new admissions in the H-1B visa category (H-1B cap). The mandated cap on H-1B visas for each fiscal year is 65,000 (regular cap) less 6,800 for citizens of Chile and Singapore pursuant to free trade agreements. In addition, the first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the regular cap (Master’s exemption).

H-1B petitions may be filed up to six months in advance, or as of April 1 for the fiscal year beginning October 1. If USCIS receives an excess of petitions during the first five business days of April, the agency will use a computer-generated random selection process, or lottery, to select enough petitions to meet the cap. USCIS will reject all unselected cap-subject petitions as well as any petitions received after the cap has closed.  

The need to resort to a lottery system is not new. The demand for H-1B visas has witnessed a sharp increase over the past three years causing USCIS to conduct a lottery each year. During FY2016, nearly 233,000 cap-subject petitions (including Master’s exemption) were received during the first five business days of April.

Based on the trend of increased demand for H-1B visas during the past three years, it is likely that employers will grapple with another H-1B lottery situation for FY2017. To maximize the chance for inclusion in the H-1B lottery, employers should begin identifying current (example: those in F-1 student status with employment authorization) and prospective employees for whom an H-1B petition has to be filed in order to obtain work authorization and initiate preparation of cap-subject H-1B petitions as early as possible.  

Please keep in mind that not all H-1B petitions are subject to the annual cap (for example, extensions, amendments, change of employer) and certain foreign nationals may be eligible for nonimmigrant visa categories other than H-1B (for example, TN, L-1, E). Please consult legal counsel for individualized assessment.

We wish you a very lucky H-1B lottery season!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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