The federal government’s Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it has reached the statutory annual quota for petitions for H-1B visas, which allow US employers to recruit and employ foreign professionals. This is the fourth year in a row in which the cap was reached within the first five working days of April, the “H-1B acceptance period” for “first in time” filings. This year, USCIS received more than 236,000 H-1B petitions—more than enough to reach the statutory cap of 65,000 visas for fiscal year 2017 and a slightly higher amount than the 233,000 H-1B petitions received for inclusion in the FY 2016 cap a year ago. USCIS also has received more than the maximum of 20,000 H-1B petitions filed under the advanced degree exception known as the “master’s cap.”
The following chart compares receipts over the last four fiscal years during which the random selection has been utilized due to excess demand:
Click here to view table.
Random selection lottery. Having reached the statutory cap amounts, USCIS conducted a computer-generated random-selection lottery on April 9, 2016, to select enough petitions to meet the 65,000 general-category quota and the 20,000 additional H-1Bs available under the advanced degree exemption. As required by the agency’s governing regulations, USCIS conducted the random-selection process for the advanced degree exemption first. Unselected advanced degree petitions filed during the first five working days of April 2016 then became part of the random-selection process for the 65,000 general-category cap.
Notification to employers. Sponsoring employers began receiving notification that their petitions were selected for processing this week. USCIS expects to have notified all selected employers by mid-May. Each unselected petition will be returned to the employer with the filing fees, unless the petition is found to be a duplicate filing, in which case the agency will keep the fees. To ensure fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple or duplicate petitions filed by an employer for the same H-1B worker and will not refund the filing fees.
Processing periods. USCIS will begin processing selected cases as soon as data entry has been completed. Last year, processing on most normal-processing petitions was completed by August 2015. For those employers who requested premium processing, USCIS plans to begin premium processing for cap cases by May 16, 2016, and will process these petitions within the 15-day statutory period required for premium processing. And the USCIS will approve, deny or issue a request for evidence within that period.
Cap-gap extensions for students. If their employer timely filed the H-1B petition for change of status, students in F-1 status with approved practical training work authorization who are selected in the annual quota may remain in the United States in F-1 status during the "cap- gap" between the end of F-1 status and the beginning of H-1B status. To be considered timely filed, the H-1B petition indicating change of status (rather than consular processing) must have been filed during the H-1B acceptance period while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT) and the 60-day departure preparation period, commonly known as the "grace period").
H-1B petitions not subject to the statutory cap. Petitions filed on behalf of current H-1B workers that have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2017 H-1B cap. Petitions exempt from the cap include petitions to:
- Extend a current H-1B worker’s time authorized to remain in the United States;
- Change a current H-1B worker’s terms of employment (e.g., salary, location, role);
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position.
Also exempt are petitions filed by institutions of higher education (or their affiliated or related nonprofit entities), nonprofit research organizations and government research organizations.
CNMI and Guam. H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) or in Guam may also be exempt from the H-1B cap (see the Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229). H-1B workers in Guam and the CNMI are exempt from the H-1B cap if their employers file(d) the petition before December 31, 2019. Employers cannot file a petition or an extension request for an employee more than six months before the intended employment start date.
Set-aside visas for Chile and Singapore. Up to 6,800 visas are set aside from the 65,000 statutory quota each fiscal year for the H-1B1 program under the terms of the US-Chile and US-Singapore free trade agreements. Unused visas in this group become available for H-1B use for the next fiscal year.
On the Horizon
Employers whose candidates are not selected may wish to pursue alternative options. For certain nationalities, special options exist, such as the H-1B1 for nationals of Chile and Singapore, the E-3 visa for nationals of Australia, and professional worker options under the North American Free Trade Agreement for nationals of Canada and Mexico. In addition, employers may wish to review options for corporate trainee programs, such as the J-1 and H-3 visas or, for select candidates who have attained renown for extraordinary ability in their field, O-1 visas. And companies that are majority owned by nationals from a country with a treaty of commerce and navigation with the United States may have options to hire nationals from the country of origin under Treaty Trader (E-1) or Treaty Investor (E-2) visas. Global companies may also wish to consider assignments for talented workers with specialized, managerial, or executive skills sets at their affiliates abroad and develop a plan to transfer those workers to the United States in L-1 status for intracompany transferees. L-1 status is premised on the worker attaining those types of skills during a qualifying period of at least one full year outside the United States while working for a related foreign entity.