On Wednesday, April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the Fiscal Year 2016 cap (FY 2016). Beneficiaries of successful FY 2016 H-1B petitions will be eligible to begin work in the U.S. on October 1, 2015. While April 1st may appear to be a long time from today, employers and potential H-1B employees will benefit from beginning the process of preparing their petitions as early as possible. Miller Canfield is currently accepting H-1B cap-subject cases for FY 2016. 

About the H-1B Cap

The annual limit on the number of new H-1B petitions that can be approved each year is referred to as the H-1B cap. There are 65,000 regular H-1B cap numbers available each year plus an additional 20,000 advanced degree numbers for those who have earned a U.S. Master’s degree or higher in a field relevant to their offered position. The H-1B filing season begins on April 1st of each year. Beneficiaries of successful petitions will be eligible to begin H-1B employment in the U.S. on October 1st of the same calendar year.

H-1B Lottery

By law, USCIS is required to leave the H-1B cap open for a minimum of five business days or until all available cap numbers have been counted, whichever comes first. If USCIS receives more petitions than there are cap numbers available during the first five business days of April, it will stop accepting cap petitions at the end of the fifth business day. USCIS will then use a computer-generated random selection process, or lottery, to select petitions for processing.

A lottery has been conducted the past two fiscal years for H-1B filings. During FY 2015, more than 170,000 petitions were received during the first five business days and a lottery was conducted on April 7, 2014. As the economy continues to improve, we anticipate the trend of a short filing season to continue, and a lottery is likely to be conducted again this year. Any cap-subject petitions that are not selected in the lottery will be returned by USCIS with filing fees.

Advanced Preparation Time Considerations

Advanced planning will help to ensure H-1B petitions are filed within the first week of April and do not miss out on the H-1B cap. Documents must be collected in order to determine whether the foreign national will qualify for the offered H-1B employment. In addition, foreign credential evaluations must be obtained in situations where the foreign national has earned his or her education from outside the U.S. Credential evaluation services are typically very busy in advance of the H-1B cap season. As such, it is very important to obtain the evaluations early to avoid last minute delay. Also, every H-1B petition filed must include a certified Labor Condition Application (LCA). The LCA currently takes no less than seven business days to process but may take longer as the date nears closer to April 1. Without a certified LCA, an H-1B petition will be rejected or ultimately denied. The sooner the LCA is filed, the more likely the LCA will be certified in time to file the H-1B petition on April 1 when the cap opens.

H-1B Visa Alternatives

In the event employers miss out on the H-1B cap this year, visa alternatives may be available, with limitations, to hire and/or retain foreign workers. Strategies on how best to achieve this can be determined on a case-by-case basis by our experienced immigration attorneys.

Conclusion

Employers who miss out on filing H-1B petitions in 2015 are not able to file new H-1B petitions again until April 1, 2016 for H-1B employment to begin on October 1, 2016. To avoid significant delay in hiring foreign nationals to work in H-1B status, employers should begin to plan for FY 2016 filings now to ensure their petitions are ready to file when the cap opens on April 1, 2015.