Haynes and Boone, LLP’s Immigration Practice Group reminds employers with a need for Cap-Subject H-1B petitions – those applications that are subject to the annual numerical limit – that the filing window for Fiscal Year 2016 will open on April 1, 2015. Although an increase in the H-1B Cap was proposed as part of executive action immigration reform, no change has occurred. As such, the number of filed petitions is expected to exceed the Cap once again.

Over the last two years, the Cap has been reached within the first week of the filing period. For Fiscal Year 2015, approximately 172,500 H-1B petitions were filed during the first week and United States Citizenship and Immigration Services (“USCIS”) used a computer-generated random selection process. Experts predict that the Cap will again be met in the first week due to the improving economy and increased workforce hiring. Given the recent trend, employers with a need for H-1B workers should contact their attorney as soon as possible to begin preparing these petitions.

The 2016 Fiscal Year runs from October 1, 2015 to September 30, 2016. Employers will be able to submit new H-1B petitions to USCIS beginning April 1, 2015 (six months before the start of the 2016 Fiscal Year) and approved beneficiaries will be able to commence their H-1B employment on October 1, 2015. USCIS will accept only 65,000 regular petitions (including 6,800 set aside for employees from Chile and Singapore) and 20,000 U.S. Master’s degree (or higher) petitions. If the Cap is reached in the first few days of April 2015 as it was the last two years, USCIS is expected to institute a random lottery process to allocate the Cap amongst those who filed petitions.

Assessing Your Cap-Subject H-1B Needs

H-1B visas are available for specialty occupations requiring the attainment of a bachelor’s degree or its equivalent. For current or transferring employees, employers should consider who might need to file an H-1B for Fiscal Year 2015:

  • Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need a change of status to H-1B;
  • Determine whether any TN employees (NAFTA professionals) or H-1B1 employees (citizens of Chile and Singapore) might want an H-1B to be eligible to apply for adjustment of status to a permanent resident;
  • Review those employees who are on expiring O visas which are renewable in only one year increments (as compared to the three-year visa period under an H-1B);
  • Check whether your transferring employees who currently hold an H-1B have already been counted against the Cap (note: anyone who is coming to you from an employer that is exempt from the numerical limit (“Cap-Exempt”) will not have been counted toward the Cap and under that transfer, may now fall within the quota); and
  • Consider whether you employ someone in L-1B status (intra-company transferees with specialized knowledge) who might need to switch to an H-1B to gain an additional year of status.

Cap-Exempt Circumstances

Employers may be exempt from the numerical limit in certain situations. These Cap-Exempt situations include: higher education institutions and related non-profits; non-profit or government research organizations; and beneficiaries who have held H-1B status in the last six years (but have not exhausted their entire six-year period).