Immigration Law Newsletter, January 2016

Get Ready for H-1B Fiscal Year (FY) 2017 Cap Season

USCIS will start accepting H-1B petitions for the FY2017 quota on Friday, April 1, 2016. The H-1B FY2017 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 an accredited U.S. institution of higher education)). The earliest employment start date for FY2017 cap-subject H-1B petitions is October 1, 2016.

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 FY2016 quota was reached on April 7, 2015. We anticipate that USCIS will make a similar announcement on or around April 7, 2016.

USCIS is required to continue accepting H-1B cap filings for a minimum of five (5) business days starting on April 1. Since April 1 falls on a Friday this year, USCIS is required to accept H-1B cap filings until Thursday, April 7, 2016. Thereafter, USCIS will only accept new H-1B petitions if the quota has not been reached, and 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, 2016 and April 7, 2016) 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 (FY2016), USCIS received nearly 233,000 H-1B petitions during the five (5) business day filing period, including petitions filed under the advanced degree exemption. On April 13, 2015, 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. All petitions that were not selected in the random selection process were returned along with the filing fees, unless the petition was found to be a duplicate filing. USCIS conducted the selection process for advanced degree exemption petitions first.

All advanced degree petitions not selected were included in the random selection process for the 65,000 limit.

Competition for new H-1Bs is expected to be as intense, if not more intense, than FY2016 as the U.S. economy continues to grow. The number of cap-subject H-1B petitions filed during the first five (5) business days has steadily increased each year, with 172,500 petitions received during the FY2015 quota and 124,000 petitions received during the FY2014 quota. Moreover, employers whose H-1B petitions were not selected in the FY2016 quota will likely file again this April.

Early Preparation Is Key

It is never too early to start preparing H-1B petitions. Corporate documents, education evaluation reports, 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 (DOL) as early as possible. It typically takes the DOL seven (7) business days to review and certify an LCA. However, we expect to see a surge in LCA filings with the DOL as April 1, 2016 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 six (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.