On Wednesday, April 1, 2015, US Citizenship and Immigration Services (USCIS) will begin accepting filings of H-1B visa petitions for employment in the fiscal year 2016 (FY 2016). Employers should begin preparing H-1B petitions well in advance of that date for new and existing employees eligible for a first-time H-1B visa to begin employment in FY 2016 (i.e., on or after October 1, 2015).
Congress has mandated an annual cap of 65,000 H-1B visas with an additional 20,000 visas available for beneficiaries with advanced degrees from US colleges or universities. It should be noted that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap will not count against the annual H-1B cap. Furthermore, pursuant to the free trade agreements with Chile and Singapore, 6,800 H-1B visas are available exclusively to Chile and Singapore nationals. This effectively reduces the total allotment of available H-1B visas to 58,200. Certain educational and research institutions, along with their affiliated entities, may be exempt from the H-1B cap.
As a reminder, the government’s “cap-gap” relief allows F-1 student visa holders with Optional Practical Training (OPT) work authorization to extend their authorized period of stay and work authorization as long as they have a pending or approved H-1B petition that was filed with USCIS prior to the expiration of their OPT. Cap-gap benefits require action by the student’s school and often result in travel restrictions during the period between the end of the student’s initial OPT period and their change to H-1B status.
Due to a recovering economy, the FY 2015 year allotment lasted only one week until April 7, 2014. The demand for H-1B visas will likely be the same as, if not greater than, last year. If the number of applications received exceeds the numerical cap, which we expect to be the case, USCIS will conduct a “lottery” and randomly select the number of petitions required to reach the numerical limit from the pool of petitions received on the final day of acceptance (“final receipt date”). USCIS will then reject petitions that are not selected, as well as those received after the final receipt date.
This year, employers should begin preparing their H-1B cap filings well in advance of April 1. As a prerequisite to filing an H-1B petition, an employer must first obtain a certified labor condition application (LCA) from the Department of Labor (DOL). It is important to file LCAs early to ensure timely H-1B cap filings.