H-1B Filing Season Is Here

Morgan Lewis

Now is the time for employers to assess their FY2017 H-1B needs and to start preparing their petitions for submission on April 1.

On April 1, 2016, US Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions for fiscal year 2017 with an employment start date of October 1, 2016. We recommend that employers send all H-1B petitions subject to the FY2017 cap to USCIS on March 31 so that USCIS receives them on April 1. USCIS will reject any cap-subject H-1B petition that it receives before April 1.

USCIS has a quota of 65,000 cap-subject H-1B visas each fiscal year. A separate allotment of 20,000 H-1B visas is available to foreign nationals who hold a master's degree or other advanced degree from a US institution of higher education. As indicated in the table below, demand for H-1B visas has fluctuated in past years. A few years ago, it took months to reach the cap; recently, in 2014 and 2015, the cap was reached within the first few days of filing. Although it is not possible to predict with complete accuracy what the demand for H-1B visas will be this year, an improving economy and an increasing demand for qualified workers, especially in the information technology industry, strongly suggest that demand will be high and that the cap will be reached again very early this year, possibly within a week of April 1. Employers should therefore submit their cap-subject H-1B petitions as early as possible.


Date H-1B Cap Reached

2009 (FY2010) 

December 21, 2009

2010 (FY2011)   

January 26, 2011

2011 (FY2012)   

November 22, 2011

2012 (FY2013)  

June 11, 2012

2013 (FY2014)

April 5, 2013

2014 (FY2015)  

April 7, 2014

2015 (FY2016)  

April 7, 2015

By law, 6,800 of the 65,000 H-1B visas are allocated as H-1B1 visas to nationals of Chile and Singapore.

Only petitions filed on behalf of foreign nationals who have not previously been counted against the H-1B cap in the last six years are subject to this year's H-1B cap. Accordingly, most H-1B change of employer petitions are not subject to the cap. H-1B petitions for foreign nationals employed by institutions of higher education, nonprofit research organizations, or for employment at governmental research organizations are not subject to the cap.

How This Affects You

Employers should review the immigration status of their current and potential foreign national employees and identify any individuals for whom H-1B status would be beneficial. These individuals include the following:

  • Recent graduates employed in F-1 status and candidates abroad who are subject to the annual H-1B cap
  • Candidates in some other nonimmigrant status (e.g., L-1B) who are approaching the maximum limits of their status and would benefit from a change of status to H-1B
  • Candidates in another nonimmigrant status who work for a different employer and would require an H-1B visa to change jobs
  • Candidates in TN, E, or H-1B1 status for whom an employer is considering pursuing permanent residence

Note that if the limit on H-1B visa numbers is reached on any one of the first five business days of the cap season, all petitions that USCIS receives between Friday, April 1 and close of business on Thursday, April 7 will still be accepted, but their selection for adjudication will be subject to USCIS conducting a lottery among them. USCIS has held a lottery for the last three years, and it is likely that it will do so again this year.

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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Morgan Lewis

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