The H-1B visa category is for temporary professional workers. Congress made the H-1B visa category subject to a numerical limit, or “cap.” The annual demand for H-1B visas far exceeds that cap. For this reason, for U.S. employers and foreign workers seeking H-1B status, it is not just important – it is essential – to understand the process and the system.
The annual allocation of H-1B visas renews with the beginning of the federal fiscal year on October 1, 2016. On that day, roughly 85,000 H-1B visa numbers will become available. This breaks down into 20,000 visa numbers set aside for holders of U.S. graduate degrees and an additional 65,000 for all other applicants.
The law allows a Petition for H-1B worker to be filed up to six months in advance of the effective date. This means that April 1 is a red letter day for persons seeking to file a Petition for an H-1B worker. On April 1, 2016, U.S. Citizenship and Immigration Service (USCIS) will begin to accept Petitions for H-1B visas for the coming fiscal year. If accepted and approved, the earliest effective date for a “cap-subject” Petition will be October 1, 2016.
The threshold question is whether or not a Petition for H-1B status is accepted by for processing. Last year, the first days of April saw a record number of Petitions reaching USCIS processing centers. Between April 1 and April 7, 2015, USCIS counted 233,000 Petitions before it announced that the cap had been reached. After announcing that the “cap” had been reached, USCIS conducted a randomized lottery to select approximately 85,000 visas for processing. The remaining cases were sent back to employers, prompting disappointed H-1B candidates to look for other options.
Now is the time to prepare cap-subject Petitions for timely filing on April 1. In order to prepare cases for filing with USCIS, it is crucial that employers act immediately to evaluate cases, to collect and forward all necessary documents, to work with the law firm on the preparation and drafting of cases so that, on Thursday, March 31, 2016, the case is ready to be sent via overnight courier to USCIS.
Please note that not all H-1B petitions are subject to the “cap.” Extensions, amendments, change of employer petitions, and petitions for concurrent employment for existing H-1B workers (who were already counted against the annual cap once in the past 6 years) are not subject to the cap and can be filed year round. Also, H-1B petitions filed by institutions of higher education, non-profit entity, governmental research organization, and other cap-exempt employers are also exempt from the “cap” and can be filed at any time.
For information about the H-1B visa category, about the “cap” and about how your company or your employer can file a Petition for H-1B status, please contact us.