On April 1, 2016, the U.S. Citizenship and Immigration Services ("USCIS") will begin accepting new H-1B visa petitions for employment that will begin on October 1, 2016. The H-1B visa is a popular choice for companies that plan to hire a foreign national to fill a "professional" or "specialty occupation" position requiring a minimum of a bachelor's degree in a specific field. Candidates for H-1B status include current employees in student status (F-1 or J-1), potential new hires, or employees in a different immigration status (for example, E, L or TN status).
Congress has placed a numerical "cap" on H-1B visas. For Fiscal Year 2017 (which begins October 1, 2016), the limit is 65,000 cap-subject H-1B visas, with an additional 20,000 visas available for individuals who have earned a master's degree or higher from an accredited U.S. educational institution. Although some exemptions from the cap may be available (principally for institutions of higher education or for persons already holding H-1B status), most employers are subject to the cap. As with last year, we expect the H-1B cap to be reached the first week of April. Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions until April 1, 2017.
Consequently, we advise employers to make H-1B sponsorship decisions as soon as possible. It is important to finalize preparation for H-1B petitions well before April 1 so that a complete petition can be submitted to USCIS on the first day it is permitted.
We strongly advise clients to finalize their H-1B petition decisions by February 15, 2016. Each petition requires a certification by the Department of Labor of a Labor Condition Application, which currently takes approximately seven days for issuance. As we draw closer to April 1, we anticipate that these certifications will take longer to obtain. It is therefore important to begin work on new H-1B petitions as soon as possible.
Unfortunately, we anticipate that yet again the demand for H-1B visas will far exceed the numbers available. For the past several years, USCIS has conducted a random lottery of all cap-subject H-1B petitions filed the first few days of April. Therefore, even if an employer files a complete H-1B petition for an employee on April 1, 2016, it is possible that the petition will not be selected in the lottery. If not selected, the entire petition (including uncashed checks) will be returned to the employer or its legal counsel.