Why is April 1, 2016 Important?

April 1, 2016 is the first day on which U.S. Citizenship and Immigration Services (USCIS) may accept H-1B specialty worker petitions for the next fiscal year beginning on October 1, 2016. To qualify for the H-1B category, the position offered must be a specialty in which a bachelor's degree (or its equivalent) is normally the minimum requirement and the foreign national must hold a bachelor's level degree (or its equivalent) in the specialty defined by the position. In some cases, this threshold may be met through a combination of education and work experience.

Due to the overwhelming demand for the annual allotment of 85,000 new H-1B slots, employers who wish to file new H-1B petitions for current or future employees should do so on April 1st. The number of H-1B approvals requested by employers has reached the annual H-1B “cap” every year for over 10 years. Last year, USCIS received nearly 233,000 petitions within the first week and then conducted a random lottery to determine which petitions would garner a spot.

Are There Certain Employees In Particular Whom We Should Consider?

Yes, three situations come to mind:

  1. Students who hold F-1 visa status and are working for your organization under a grant of Optional Practical Training work permission;
  2. Certain L-1 Intracompany Transferees who work for your organization; and
  3. Candidates who are not yet working for your organization but whom you have an interest in employing in the near future.

F-1 Students and L-1 Transferees have limited-duration work permission. If you wish to continue employing these individuals beyond their current authorization, the H-1B category may be an option.

Why F-1 Students?

Some F-1 students may hold Optional Practical Training work permission limited to no more than one year. Other F-1 students may be eligible (in some cases) for an additional 17 months of Optional Practical Training work permission. However, there is a possibility that a court decision requiring USCIS to revise the way in which 17-month OPT extensions are handled could impact the continued availability of these kinds of OPT extension approvals in 2016.

Why L-1 Intracompany Transferees?

The L-1 intracompany transferee visa category applies to foreign nationals who have been employed abroad in executive, managerial or specialized knowledge capacities for at least one year with a commonly-owned foreign company and who are in the United States working for the same or a related U.S. employer.

L-1 executives or managers (L-1A) may remain in the United States for a maximum of seven years. Specialized knowledge (L-1B) employees may remain for a maximum of five years.

Are There any Exemptions from the Annual H-1B “Cap”?

Persons already counted under the H-1B cap and need an extension of stay are not subject to the annual limitation. Similarly, persons who already hold H-1B status and are transferring to a new employer are exempt from the cap. The annual limitation applies only to persons not yet counted against the annual cap. Also, certain types of educational or nonprofit organizations that file H-1B petitions are exempt from the H-1B numerical limitation.