This memo is intended to provide information related to the H-1B “Cap” filing season that commences on April 1, 2016 for new H-1B filings that commence on October 1, 2016.  These are known as Fiscal Year 2017 filings as the new government fiscal year for 2017 begins on October 1, 2016. 

The Caps

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, 4, 5, 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. Given the demand for new H-1Bs for FY 2016, we fully anticipate that there will be a lottery again this year.

As all cases received by USCIS in the first five business days of filing (April 1 through April 7, 2016) are treated the same, and we can file H-1B Cap petitions as late as April 6th (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).

Our Process

We ask that you notify us of your request to file all H-1B petitions no later than March 16, 2016 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, 2016.  However, we do understand that there may be circumstances that could prevent you from providing us confirmation of your need to file before March 16, 2016. Cases we receive later in the month we will also try to file on March 31st but, in any event, we will ensure they will be filed by April 6th unless we advise otherwise. Internally, we plan to file all LCAs (for known cases) on March 14th for a targeted March 22nd, or earlier, approval. We will prioritize cases based on when we are notified and as long as we hear about a case prior to March 1st we plan to have all drafts out for signature by March 18th; cases that are commenced later will be drafted as soon as we can, 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.

USCIS Process

When USCIS receives these filings on April 1, 2016 it will assign them a number and perform initial processing. The same happens for Cap cases received the 4th through 7th (note that the 2nd and 3rd are weekend days). A Cap case received on April 1st has as much of a chance of making it into the lottery as a Cap case received April 7th. We have no control over the lottery and whether a case makes it into the lottery. The process is entirely random. Further, filing with premium processing does not guarantee expectance into the lottery despite what individuals may have heard from friends and online immigration forums.

In recent years, USCIS will announce that they will not hold the lottery until a certain date, usually a couple of weeks after the Cap closes, but the reality has been that they hold the lottery within 2-3 business days, so most likely the week of April 11,, 2016. Once the lottery is held, we begin receiving receipt notices for filings that made it into the lottery about a week after that, so the week of April 25th. We should know the result of all cases filed by the middle of May. If accepted, the average processing time for Cap cases is anywhere from two to four months.

We will notify all clients of the status of their case and whether they made it into the lottery. Should a particular client not make it into the lottery, we will discuss possible alternatives to remaining in the U.S. and work authorized. 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.

Important considerations for F-1 students

Currently, the STEM/OPT program becomes void on February 12, 2016 as that is the date a Federal Court set for termination of the program pending action by the Government. We know that there has been draft legislation to replace the current program but the rules are not yet active. The Government, in its proposal is pushing to extend STEM OPT for 24 months and opening the field of degrees that will qualify for this extension. Given the hardship both students and employers would face if new regulations are not implemented, we anticipate implementation will occur to allow for STEM Extensions, but do not know exactly when that process will be concluded. We continue to monitor this situation and will provide updates as they become available.

** 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 **