This memo is intended to provide information related to the H-1B “Cap” filing season that commences on April 1, 2015 for new H-1B filings that commence on October 1, 2015. These are known as Fiscal Year 2016 filings as the new government fiscal year for 2016 begins on October 1, 2015.
The so called “Cap” we refer to applies to all NEW H-1B filings where the sponsored employee has NOT previously been counted against the Cap and where the employer is not somehow Cap-exempt. (Some employers or employment situations permit Cap exemption. If the applicant has previously held an H-1B status, even years ago, and as long as time remains within their six-year period of total stay, we can file a Cap-exempt H-1B petition.)
There are essentially two Caps. The first is the standard Cap for regular H-1B filings (referred to as the “Regular Cap”). There are only 65,000 Regular Cap H-1B filings permitted per fiscal year, and of this number, 6,800 available spaces have been reserved for citizens of Chile and Singapore – what is not used by these individuals in a given year is available for Regular Cap H-1B applicants the following year. The second Cap is technically a Cap exemption, but since it is limited in number and ultimately runs out each fiscal year, it in essence creates a separate Cap. This is in reference to an additional 20,000 H-1Bs set aside for individuals who graduate from a U.S. Master’s degree program that meets certain criteria (referred to as the “Master’s Cap”).
These two Caps operate in tandem. USCIS anticipates, based on past years, to deny a certain percentage of filings and, as a result, they may accept more cases for processing than the Caps permit (e.g. it may accept 80,000 cases for the 65,000 Regular Cap and 25,000 cases for the Master’s Cap). If USCIS determines that sufficient cases have been accepted to meet one of the Caps on a specific day, the Cap is deemed to be closed for the fiscal year. If more than enough cases are accepted to meet one of the Caps on a specific day, the cases received that day are subject to a lottery to determine which cases will be accepted for processing. Those cases not selected in the final lottery will be returned to the attorney of record. All cases received during the first five business days in April are considered to have the same priority toward the Cap (this year, cases received between April 1, 2, 3, 6, and 7 will all be treated as one group). During the first five business days of filing, if a case that is filed under the Master’s Cap subject to a lottery is not randomly selected, the case would be placed in the Regular Cap for consideration. If the Regular Cap is not reached for the fiscal year, excess cases filed under the Master’s Cap will be receipted. However, if the Regular Cap is also hit for the fiscal year, excess Master’s Cap cases will go in the Regular Cap lottery. We fully expect that there will be a lottery again this fiscal year for both the Regular and Master’s Caps.
As all cases received by USCIS in the first five business days of filing (April 1 through April 7, 2015) are treated the same, we can file H-1B Cap petitions as late as April 6 (so long as they arrive on April 7). Please keep in mind that before we can file the H-1B Petition, we need to get an LCA certified from the DOL. LCA processing can take seven business days and, as a result, we will file our LCAs early to ensure they are approved in time to file our H-1B Cap Petitions, thus avoiding possible glitches that can happen when the DOL portal is overwhelmed and crashes.
We ask that you notify us of your request to file all H-1B petitions no later than March 13, 2015 so that we may file in a timely manner. In any event, the sooner we know, the sooner we can process your application. We plan to file all H-1B cases on March 31, 2015. However, we do understand that there may be circumstances that could prevent you from providing us confirmation of your need to file before March 13, 2015. Cases we receive later in the month we will also try to file on March 31 but, in any event, we will ensure they will be filed by April 6 unless we advise otherwise. Internally, we plan to file all LCAs by March 13 for a targeted March 23, or earlier, approval. We also plan to have all drafts out for signature by March 13 for cases we hear about by March 1, and drafts out for signature by March 25 for cases we hear about by March 13, with priority going to clients who have submitted all necessary supporting documents.
Being proactive will allow us to be ahead of schedule to accommodate last minute changes or delays, or to accommodate last minute new hires.
When USCIS receives these filings on April 1, 2015, it will assign them a number and perform initial processing. After the last filing is received on Tuesday, April 7, they will know if a lottery is warranted (it may take until Wednesday or later in the week for it to complete the count). If a lottery is necessary, we will likely know by the beginning of the week April 13 that the lottery is in process. If no lottery is required, we will likely hear even sooner from USCIS and we will know that all cases filed during the first five business days of April will be receipted and processed. In this scenario, Caps will then be subject to cut off the next business day they fill the Cap. Also, in this scenario, all of our originally filed H-1Bs will be receipted. However, we do not anticipate this scenario, nor have this scenario happened in the prior two filing seasons.
If a lottery occurs, we will not know the result of the lottery until we receive a receipt notice or the original filing is returned. Usually, if it is accepted through the lottery, we know within about five to six weeks of the lottery. However, this may take longer depending on mailroom flow at USCIS. If a lottery impacts our clients, we will be certain to notify each client of the positive or negative consequences of a lottery. Unfortunately, we have no control over the lottery itself, but we make every effort to make a clean filing to guarantee each case is received without issue and if receipted, will ultimately be approved.
We expect that both H-1B Caps will be reached within the first five business days of April. And, if that were to happen, those applicants with an eligible U.S. Master’s degree would have a distinct advantage in having eligibility for two lotteries (if necessary). If we enter the week of April 6, 2015 and get through April 7th without hitting the Caps, then, for the purposes of H-1B Cap counting, each individual day is then treated as a separate day. And if, for example, we hit the regular H-1B Cap on April 10, then only those cases received by April 11 are subject to the lottery and all earlier filings will be processed. Any cases received on the April 14 or later will be rejected.
Please note that if a case is returned because the H-1B Cap is met and the case was not selected in the lottery, the filing fee checks will be returned and we will refund those filing fees. A case that is rejected as a result of the lottery is not truly a “prior filing” as the case is never receipted by USCIS.
We have observed over the years that USCIS is often very efficient with the first batch of H-1B filings it is working on but then it starts to slow down. We anticipate that any case accepted during the first five business days of April will process within four months of receipt (those at the top of the “pile” within 45 days). Of course, we will closely monitor this and advise in situations where we see delays. Premium Processing may be used to ensure the decision is made within fifteen days of receipt of the petition. Note: Premium Processing DOES NOT guarantee that a case filed will be successful with lottery selection in the event that there is a lottery.
Possible DHS Shutdown
As has previously been threatened by Congressional Republicans, it is possible that DHS funding is not renewed if a piece of legislation eliminating DACA and DAPA eligibility is not enacted. Should DHS lose its funding, rest assured that USCIS continues to function and will accept H-1B filings against this year’s Caps. Please also know that since this funding issue will only arise in relation to DHS, we are not concerned that there will be any impacts to Department of Labor processing, and as such LCAs should be processed without difficulty. The end result is that any cancellation of DHS funding will not impact the H-1B Cap filing season.
Important considerations for F-1 students
Individuals who have completed their degree programs are eligible for an OPT period for twelve months, which permits the issuance of an EAD (Employment Authorization Document). Individuals that have qualifying STEM (Science, Technology, Engineering, Math) degree from a U.S. institution and the employer they are working for is an eVerify employer, they are permitted to ask for a seventeen month extension of their EAD. This is referred to as a “STEM extension.”
Individuals who qualify for a STEM extension have the benefit of additional EAD time, and if they are not selected in an H-1B lottery situation, they will be in a position to file the H-1B petition again the year following.
As EADs can be applied for up to four months prior to expiry and since the STEM extension is automatic, so long as you file prior to the current EAD expiry, there is a four month window when you may file to extend the EAD.
Additionally, there is a “Cap Gap” allowance provided by USCIS. Cap Gap permits individuals who have EADs expiring between April 1 and September 30, 2015 to have them automatically extended based on the filing of the H-1B petition. For many F-1 students who seek an H-1B the Cap Gap is invaluable in maintaining work authorization over the summer.
Highlighted below is the guidance we will provide to individuals who qualify for Cap Gap status. It is important to know the rights and restrictions that impact these employees.
“We understand that your F-1 Optional Practical Training (OPT) status will likely expire before October 1, 2015. There has been an allowance permitted by USCIS to extend your OPT “automatically” with the filing of your H-1B petition request to cover the gap between the end of OPT status and the start of H-1B status. Your F-1 OPT status can be extended from its expiry through September 30, 2015 under a “Cap-Gap extension,” as long as an H-1B petition is filed for you prior to the expiration of the EAD. For example, if we file an H-1B that is receipted on April 1, 2015 and your EAD expires on July 7, 2015, you are entitled to continued work authorization through September 30, 2015, on the basis of “Cap-Gap extension” of the EAD. Please be aware of the following important clarifications while in “Cap-Gap” status:
1) To maintain “Cap-Gap” work authorization, no travel out of the country between the filing of the H-1B and its intended start date is permitted. This means staying in the U.S. from late March until October 1, 2015. If you leave during a “Cap-Gap” period, you can only return and work until your EAD expires, at which point you will have no further work authorization until you leave and then reenter on your H-1B visa/approval;
2) You must notify your school, before your EAD expires, that you plan to continue to use your EAD/OPT period. You must show your H-1B filing receipt so the school knows you qualify for “Cap-Gap” status. If you do not notify your school, your SEVIS record may be deactivated by the school and this may result in a “new” H-1B approval, and not a grant of a change of and extension of status. This may cause you to fall out of status and lose your work authorization. Thus it is important to notify your school;
3) You do not need to file anything with USCIS and no additional fee is required to take advantage of “Cap-Gap” status.
As this period unfolds we will provide updates on the status of the H-1B Cap. Please do not hesitate to contact us if you have questions or last minute issues that come up.
** This newsletter/memo is provided for informational and discussion purposes only.
It does not act as a substitute for direct legal contact on an individual basis **