On April 12, U.S. Citizenship and Immigration Services (USCIS) announced that during the initial filing period for FY 2017 H-1B petitions the agency had received more than 236,000 H-1B petitions and that it had completed a computer-generated lottery to select H-1B cap-subject cases. This follows the agency’s announcement on April 7, 2016 that it had reached the congressionally mandated 65,000 regular H-1B cap and the 20,000 U.S. master’s exemption cap for fiscal year 2017.
Cases received by USCIS during this period that were not selected under the lottery procedure will be rejected and returned to the petitioner with the filing fees. This year’s receipts were slightly higher than last year’s filings, when USCIS received almost 233,000 H-1B cap petitions in the initial filing period.
On Thursday, April 28, 2016, Sidley will host a webinar to discuss strategic alternatives to the H-1B visa, including several non-traditional options for employment of professional foreign national employees. An invitation to the April 28 webinar will be forthcoming.
For cap-subject H-1B petitions that were filed with the USCIS premium processing service, the 15-day adjudication period will not begin until after USCIS has completed intake of cap-subject petitions. USCIS has advised that premium processing for H-1B cap cases will begin no later than May 16, 2016.
The exhaustion of the FY 2017 quota means that companies will not be able to file new H-1B petitions again until April 1, 2017 for positions with October 1, 2017 start dates. Please contact us to discuss any employees or candidates affected by the exhaustion of the H-1B cap.
What is the H-1B cap?
The current law allocates an annual limit of 65,000 new H-1B visas that may be issued each fiscal year. Out of the 65,000 new H-1B numbers, 6,800 are set aside for H-1Bs under the terms of the U.S.-Chile and
U.S.-Singapore Free Trade Agreements, resulting in 58,200 visas available under the regular H-1B program. Additionally, Congress has made 20,000 H-1B visas available for foreign workers holding a master's degree or higher from a U.S. academic institution.
Who is subject to the H-1B cap?
With limited exceptions, all individuals seeking new H-1B employment are subject to the cap limit. Individuals subject to the H-1B cap include:
- Foreign nationals outside the U.S. seeking to enter in H-1B status
- Foreign nationals already in the U.S. seeking to change to H-1B status (e.g., students in F-1 status or working under Optional Practical Training)
- Foreign nationals already in the U.S. seeking to change to H-1B status for a strategic reason (e.g., those in TN status wishing to apply for a green card, or those in L-1 status approaching the maximum L-1 time limit)
- H-1B holders changing from a cap-exempt employer to a cap-subject employer
Who is not subject to the H-1B cap?
Individuals who are employees of cap-exempt employers or who have been previously counted under an H-1B quota within the past six years are not subject to the FY 2017 cap. This includes:
- Foreign nationals already in H-1B status in the U.S., working for a cap-subject employer, seeking to “port” their H-1B status to another company
- Foreign nationals already in H-1B status in the U.S. seeking to extend their H-1B status
- Foreign nationals seeking employment with certain H-1B-exempt employers such as universities, nonprofit research organizations and government research organizations
How long does it take for the cap to be reached?
In years prior to FY 2010, USCIS had received enough petitions within the first five days of the eligible filing period and had conducted a computer-generated lottery for petitions received within the eligible filing period in order to select the H-1B petitions eligible to receive an H-1B number for the fiscal year.
From FY 2010 to FY 2012, it took several months before the H-1B cap was exhausted, but a significant increase in demand reappeared in FY 2013 and visa numbers were depleted in early June. FY 2014 saw a return to the high demand which exhausted the annual quota within the first five business days of the eligible filing period.
|Final Receipt Date|
|H-1B Fiscal Year||Regular Cap||Master’s Cap|
|FY 2010||12/21/09||Mid-April 2009|