Overview
The H-1B cap season is fast approaching. For fiscal year 2016 (FY 2016), US Citizenship and Immigration Service (USCIS) will begin accepting cap subject H-1B petitions on Wednesday, April 1, 2015. This is the earliest date for which an employer may file a petition to be received by USCIS requesting H-1B employment with a start date of October 1, 2015. USCIS anticipates that April 1, 2015 will see a repeat of the mass filings from last year, when the annual H-1B cap was reached within the first few days after the initial filing date. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of 65,000 for the H-1B cap has been met. This date is known as the final receipt date. There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year. The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a US university are exempt from the 65,000 cap; H-1B visas issued to such US master’s degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap. While it is impossible to predict exactly when the FY2016 H-1B cap will be reached, it is helpful to provide some context. During the last two years, the H-1B cap was met the first week (five business days) of filing, and we expect that this will be the case this year as well. If USCIS receives more petitions than it can accept by April 5th, USCIS will use a lottery system to randomly select the number of petitions eligible for H-1B status. USCIS will reject petitions that are subject to the cap and are not selected through the lottery. It will return these petitions, not reviewed and with the filing fees intact. It is anticipated that the trend toward shorter cap filing seasons will continue, and it is therefore important that employers make the necessary preparations in advance of April 1, 2015.
There is work that must be done in advance if one plans to file an H-1B cap-subject case by the beginning of April 2015. One key step in the process is the Labor Condition Application (LCA). All H-1B filings must be accompanied by an LCA certified by the US Department of Labor (DOL). The DOL may take as many as seven business days to adjudicate the LCA. The DOL's timeline does not begin until the LCA, with the required information about the employer and position, is submitted to the DOL. First-time H-1B employers should allow an additional three to five days for processing as administrative issues may arise. For example, some employers’ federal tax ID (FEIN) will have to be “registered” with the DOL database in order for the LCA to be accepted.
Since cap subject H-1B visa petitions can be filed no more than six months prior to the date the employee will begin working for the petitioner, we strongly encourage employers to assess their staffing needs for the upcoming year now to prepare for the H-1B cap filing season.