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Get Ready for H-1B Fiscal Year (FY) 2016 Cap Season


FY 2016 H-1B Cap Filing Season Opens April 1,2015

USCIS will start accepting H-1B petitions for the FY2016 quota on Wednesday, April 1, 2015. The H-1B FY2016 quota is 85,000 H-1B visas (being 65,000 H-1B visas for the general category and 20,000 H-1B visas for the advanced degree exemption (i.e. individuals with a U.S. Master’s degree from accredited U.S. institution of higher education)). The earliest employment start date for FY 2016 cap-subject H-1B petitions is October 1, 2015.

As was the case last year, we expect a huge demand for new H-1Bs, and the annual quota will likely be reached quickly. Last year, USCIS announced that the FY2015 quota was reached on April 7, 2014. We anticipate that USCIS will make a similar announcement on or around April 7, 2015.

USCIS is required to keep accepting H-1B cap filings for a minimum of five (5) business days. Since April 1 falls on a Wednesday this year, USCIS is required to accept H-1B cap filings until the following Tuesday, April 7, 2015. Thereafter, USCIS will continue to accept new H-1B petitions, but only until the H-1B quota is reached.

We strongly recommend employers to identify employees who may require H-1B sponsorship and begin preparing the H-1B petitions as early as possible to ensure timely filing (between April 1 and April 7 of this year) in order to maximize the chance of the H-1B application being accepted by USCIS.

High Demand and Likely Lottery

During last year’s H-1B cap filing season (FY2015), USCIS received approximately 172,500 H-1B petitions during the five (5) business day filing period, including petitions filed for 20,000 reserved for the advanced degree exemption. On April 10, 2014, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected in the lottery, USCIS rejected and returned the petitions with the filing fees. USCIS conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.

Competition for the new H-1Bs is expected to be as intense, if not more, than FY2015, as the U.S. economy has been steadily growing. Moreover, employers whose H-1B petitions were not selected in the FY2015 quota will likely file again this April. This too may contribute to the higher demand for H-1B visas.

Early Preparation Is Key

It is never too early to start the preparation process. Corporate documents, education evaluation documents, third party client letters, and other essential documents take time to gather and assemble. Employers are also encouraged to file Labor Condition Applications (LCAs) with the Department of Labor as early as possible. It typically takes the Department of Labor seven (7) business days to review and certify an LCA. However, we expect to see a surge of LCA filings with the Department of Labor as April 1, 2015 draws closer.

Lastly, not all H-1B petitions are subject to the annual quota and lotteries. Extensions, amendments, change of employer petitions, and petitions for concurrent employment for existing H-1B workers (who were already counted against the annual cap once in the past 6 years) are not subject to the cap and can be filed year round. Moreover, H-1B petitions filed by institutions of higher education, non-profit entity, governmental research organization, and other cap-exempt employers are also exempt from the annual quota.

Guam and CNMI Exemption

H-1B workers performing labor or services in the CNMI (Commonwealth of the Northern Mariana Islands) and Guam are exempt from the H-1B quota.

Chile and Singapore Treaty Set Aside

Each fiscal year, 6,800 H-1B visas are set aside from the 65,000 H-1B visa cap for the H-1B1 program for Singapore and Chilean nationals, under terms of the legislation implementing the U.S. Chile and U.S. Singapore free trade agreements. Unused visas in this group will become available for H-1B use for the next fiscal year.

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