H-1B Filing Season Is Here - December 2016

Morgan Lewis
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Morgan Lewis

Now is the time for employers to assess their FY2018 H-1B needs and start preparing their petitions for submission on April 3.

On April 3, 2017, US Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions for fiscal year 2018, with an employment start date of October 1, 2017. We recommend that employers send all H-1B petitions subject to the FY2017 cap to USCIS for delivery on April 3. Any cap-subject H-1B petitions that USCIS receives before April 3 will be rejected.

USCIS has a quota of 65,000 cap-subject H-1B visas each fiscal year.[1] A separate allotment of 20,000 H-1B visas is available to foreign nationals who hold a master's or other advanced degree from a US institution of higher education. As indicated below, demand for H-1B visas fluctuated in past years. A few years ago, it took months to reach the cap; recently, in 2015 and 2016, 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 again be reached shortly after the April 3 initial filing date. Employers should therefore plan to submit their cap-subject H-1B petitions for receipt on April 3, and certainly no later than April 7.

Year     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
2016 (FY2017)   April 7, 2016

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. H-1B petitions for foreign nationals employed by institutions of higher education, by nonprofit research organizations, or 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 Monday, April 3 and the close of business on Friday, April 7 will still be accepted. USCIS will then conduct a random lottery to select for processing a sufficient quantity of petitions to exhaust the quota. Petitions not selected in the lottery will be returned to the employers. Filing multiple petitions for the same individual in the same job is prohibited. A lottery has been held for the last three years and is likely to be held again this year.


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

 

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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