Fiscal Year 2016 H-1B Cap

If companies have employees who will need to be sponsored for new H-1B visas for the fiscal year 2016, they should get started now. U.S. Citizenship and Immigration Services (USCIS) will start accepting new H-1B petitions for fiscal year 2016 on Wednesday, April 1, and it is extremely likely that this year's H-1B quota will be met within five business days of the opening.

Once the cap is met, USCIS will stop accepting new petitions until next year's H-1B cap, which will open again on April 1, 2016. If USCIS receives more petitions than are available in the quota, then a lottery will be conducted to select the petitions that will be processed under the H-1B cap. Please note that only new H-1B petitions are affected by the H-1B cap; H-1B petitions involving an individual who has already been counted against the H-1B cap or who has previously held H-1B status are not affected by the H-1B cap.

Background

U.S. businesses use the H-1B program to employ foreign workers in specialty occupation positions that require theoretical or technical expertise in specialized fields, such as scientists, engineers or computer programmers. The number of initial H-1B visas available to U.S. employers (the H-1B cap) is 65,000, with an additional 20,000 set aside for individuals who have obtained a U.S. master's degree or higher.

The use of the H-1B program is strongly connected to the health of the U.S. economy. The rate at which USCIS has received cap-subject H-1B petitions in the past few years has dramatically increased as the economy has improved. For example, last year, USCIS received 172,500 H-1B petitions within the first week of filing, requiring a lottery in order to select the petitions needed to meet the regular cap of 65,000 and master's cap of 20,000.

Business immigration practitioners are predicting that this year's H-1B demand will be even greater than last year (perhaps 200,000 or more filings during the first week of the filing season, April 1 through April 7). As a result of this expected demand, more than half of all H-1B petitions filed by employers may be rejected by USCIS due to the randomized lottery system.

Should such a rejection occur, an affected foreign national seeking immigration and employment authorization sponsorship with an employer will be unable to obtain an H-1B visa until at least Oct. 1, 2016, (with the filing season beginning April 1, 2016). Affected foreign nationals may also be required to forego employment with employers and possibly leave the United States. In such cases, employers will need to look at alternative visa options for employees unable to secure an H-1B visa.

Advice for Employers

Employers should file H-1B cap-subject petitions with USCIS on the earliest possible date in fiscal year 2016: mailing of H-1B cap-subject petitions to USCIS on March 31, for delivery to USCIS on April 1, the very first day of filing. This will provide the best possible chance for acceptance of the H-1B petition.

It also is recommended that H-1B cases should be initiated immediately. It can take two to four weeks or more to gather all of the necessary information and documentation, and prepare the requisite forms and supporting documentation for filing of an H-1B petition. Required information from the employer will include: job title, job description, job location, minimum education and experience required for the position, and offered wage/salary. Required information from the employee will include: resume, educational documents (diplomas and transcripts), and any documents related to prior or current U.S. immigration status.

Getting a head start on compiling and filing petitions with the above advice will give employers the best chance of securing H-1B visas for foreign national employees.

Ian R. Macdonald is a Shareholder in the Business Immigration & Compliance Practice Group at international law firm Greenberg Traurig. He may be reached at [email protected].

If companies have employees who will need to be sponsored for new H-1B visas for the fiscal year 2016, they should get started now. U.S. Citizenship and Immigration Services (USCIS) will start accepting new H-1B petitions for fiscal year 2016 on Wednesday, April 1, and it is extremely likely that this year's H-1B quota will be met within five business days of the opening.

Once the cap is met, USCIS will stop accepting new petitions until next year's H-1B cap, which will open again on April 1, 2016. If USCIS receives more petitions than are available in the quota, then a lottery will be conducted to select the petitions that will be processed under the H-1B cap. Please note that only new H-1B petitions are affected by the H-1B cap; H-1B petitions involving an individual who has already been counted against the H-1B cap or who has previously held H-1B status are not affected by the H-1B cap.

Background

U.S. businesses use the H-1B program to employ foreign workers in specialty occupation positions that require theoretical or technical expertise in specialized fields, such as scientists, engineers or computer programmers. The number of initial H-1B visas available to U.S. employers (the H-1B cap) is 65,000, with an additional 20,000 set aside for individuals who have obtained a U.S. master's degree or higher.

The use of the H-1B program is strongly connected to the health of the U.S. economy. The rate at which USCIS has received cap-subject H-1B petitions in the past few years has dramatically increased as the economy has improved. For example, last year, USCIS received 172,500 H-1B petitions within the first week of filing, requiring a lottery in order to select the petitions needed to meet the regular cap of 65,000 and master's cap of 20,000.

Business immigration practitioners are predicting that this year's H-1B demand will be even greater than last year (perhaps 200,000 or more filings during the first week of the filing season, April 1 through April 7). As a result of this expected demand, more than half of all H-1B petitions filed by employers may be rejected by USCIS due to the randomized lottery system.

Should such a rejection occur, an affected foreign national seeking immigration and employment authorization sponsorship with an employer will be unable to obtain an H-1B visa until at least Oct. 1, 2016, (with the filing season beginning April 1, 2016). Affected foreign nationals may also be required to forego employment with employers and possibly leave the United States. In such cases, employers will need to look at alternative visa options for employees unable to secure an H-1B visa.

Advice for Employers

Employers should file H-1B cap-subject petitions with USCIS on the earliest possible date in fiscal year 2016: mailing of H-1B cap-subject petitions to USCIS on March 31, for delivery to USCIS on April 1, the very first day of filing. This will provide the best possible chance for acceptance of the H-1B petition.

It also is recommended that H-1B cases should be initiated immediately. It can take two to four weeks or more to gather all of the necessary information and documentation, and prepare the requisite forms and supporting documentation for filing of an H-1B petition. Required information from the employer will include: job title, job description, job location, minimum education and experience required for the position, and offered wage/salary. Required information from the employee will include: resume, educational documents (diplomas and transcripts), and any documents related to prior or current U.S. immigration status.

Getting a head start on compiling and filing petitions with the above advice will give employers the best chance of securing H-1B visas for foreign national employees.

Ian R. Macdonald is a Shareholder in the Business Immigration & Compliance Practice Group at international law firm Greenberg Traurig. He may be reached at [email protected].