More petitions likely than last year.
AB Wire
U.S. Citizenship and Immigration Services (USCIS) will accept H-1B cap-subject petitions for the 2016 allotment of visas for foreign national professionals in specialty occupations, starting April 1.
Cap-subject H-1B visas become available each year on October 1 — and filings with USCIS can be made no sooner than six months in advance.
With the H-1B cap reached within the first five days of filing in the last three years (2015, 2014 and 2013), there continues to be pent up demand for H-1B visas, according to a release by JD Supra. It is anticipated that even more H-1B visas will be filed this year due to this continued demand.
Per immigration rules, a limited number of H-1B work visas are available each year. Under the regular H-1B cap, 65,000 H-1B visas are available. An additional 20,000 are available under an exemption for foreign nationals (usually F-1 visa students) who have graduated from a U.S. college or university with a master’s degree or higher.
The H-1B visa is the most popular visa category for employers to obtain work authorization for key foreign national employees and is available for a wide variety of professional positions, including engineering, biology, computer science, accounting, teaching, sales/marketing and many other professional occupations.
Foreign nationals who will fill a professional “specialty occupation” position can qualify for H-1B status. A “specialty occupation” is an occupation that requires at least a bachelor’s degree (or the equivalent) as a minimum requirement. The foreign national must have a bachelor’s degree (or the equivalent) in the field of specialty in order to qualify for H-1B status.
It is important to note that not all H-1B cases are subject to the cap, says JD Supra. People, not petitions, are to be counted under the H-1B cap. Under this rule, if the foreign national listed on the petition does not already have H-1B status, the H-1B visa petition counts against the cap. Petitions not subject to the cap include H-1B extensions, petitions to change H-1B employers and petitions filed by institutions of higher education.
USCIS will accept H-1B cases for each fiscal year (FY) until the entire allotment of 65,000 and 20,000 have been exhausted. In the last three H-1B filing seasons (FY2014, FY2015 and FY2016), the allotment of H-1B visas was reached — at the time of filing in April — much earlier than in previous years.
Until April 2013 (FY2014), the H-1B cap for the entire fiscal year was not reached immediately upon the April 1 filing. From 2009-12 (FY2010 to FY2013), the allotment of H-1B visas lasted for several months after the initial filings made on April 1. For example, for FY2013, the cap was reached on June 12, 2012.
During last year’s process, USCIS announced on April 7, 2015, that 233,000 cap subject H-1B petitions were received between April 1 and April 7. During last year’s H-1B cap season, because there were sufficient cases to meet the annual cap of 65,000 for regular cases and 20,000 U.S. advanced degree exemption cases, USCIS conducted a computer-generated random selection process.
The “lottery” was conducted on April 13, 2015. USCIS first conducted the random lottery of the 20,000 H-1B cases eligible under the master’s cap exemption. Those cases not selected as one of the 20,000 under the master’s cap exemption were then included in the random lottery for the 65,000 allotment. Those cap-subject petitions not selected during the random lottery were then sent back, with filing fees.
Although USCIS announced prior to April 1, 2015, that it would start processing premium processing cases on May 11, 2015, USCIS actually started receipting, processing and approving H-1B cases before that date.
With premium processing cases, USCIS will send out email receipt notices stating that USCIS has started processing the case under its premium processing service. Receiving such an email notification indicates that a case was selected under the random lottery. Additionally, for cases filed without premium processing that were selected in the lottery, USCIS sends a hard copy receipt notice by mail. Such receipt notices were issued up to several weeks after the April 13 lottery.
Under current rules, USCIS will accept all H-1B petitions properly filed during the first five business days before conducting a random selection process, so that petitioners need not file H-1B petitions exactly on April 1. USCIS will also implement premium processing after the random lottery is conducted. As in the past, if a case is not chosen, USCIS will return the petition along with all applicable filing fees, including the $1,225 premium processing filing fee.
A key piece of paperwork needed for the filing of the H-1B petition is the approval and certification of the labor condition application (LCA) with the Department of Labor. DOL is currently processing LCAs within a seven-business-day time frame. Therefore, employers should anticipate this wait time (at least) in receiving an approved labor condition application. Employers should start working on LCAs — and the other necessary paperwork — now to avoid crunch time issues immediately before the April 1 filing date.
Due to the significant increase in filings, USCIS issued more Requests for Evidence (RFE) in FY2016 than in past years in part to ensure that only clearly approvable H-1B cap cases were approved, said the release. It is important to start preparing cases early to identify and resolve any potential issues before filing to avoid these RFEs. When RFEs are issued, approval of the H-1B petition is delayed — sometimes significantly — and can even be months beyond the initial October 1 start date listed in the H-1B petition.