The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2016 will begin on Wednesday, April 1, 2015. Cap-subject H-1B petitions will have an employment start date of October 1, 2015, or later. In preparation for the opening of the FY 2016 H-1B filing period, employers are strongly encouraged to begin identifying current and future employees who will need H-1B visa status to be legally employed in the United States. Individuals currently employed as F-1 students or J-1 trainees, individuals seeking to change to H-1B status from another visa status (such as L-1, TN, O-1, or E-3), and individuals outside of the United States commonly require a cap-subject H-1B petition be filed on their behalf.
Overview of the H-1B Visa Program and Annual Numerical Limitation
The H-1B visa program permits employers to employ foreign workers in specialty occupations that require the theoretical or practical application of a body of highly specialized knowledge, such as engineers, scientists, and computer programmers (among others). Federal law limits the number of new H-1B visas that are available each fiscal year to 65,000. Of that number, 6,800 visas are reserved for citizens of Chile and Singapore pursuant to the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. In addition to the 65,000 H-1B visas made available each fiscal year under the “regular” cap, an additional 20,000 H-1B visas are made available for beneficiaries who have obtained an advanced degree (i.e., a Master’s degree or higher) from a U.S. academic institution at the time of filing.
If the U.S. Citizenship and Immigration Services (USCIS) receives more cap-subject H-1B petitions than the annual fiscal year limitation, USCIS will conduct a computer-generated random selection process, or lottery. The first lottery will be limited to those individuals who possess an advanced degree from a U.S. academic institution. Any H-1B petition for a beneficiary possessing an advanced degree from a U.S. academic institution that is not selected in the advanced degree cap lottery will be included in a second lottery for the “regular” H-1B cap. Cap-subject petitions that are not randomly selected under the lottery will be rejected and returned with filing fees. Once the number of available H-1B visas is reached for the federal fiscal year, no new cap-subject H-1B petitions can be approved until the filing period for the next fiscal year opens.
H-1B Cap-Exempt Petitions
Not all H-1B petitions are subject to the annual fiscal year limitation. H-1B petitions that are filed to extend or amend H-1B employment for foreign workers who are already in H-1B status, and petitions filed on behalf of new workers to be employed in H-1B status by institutions of higher education or related nonprofit entities, nonprofit research organizations, or governmental research organizations are exempt from the H-1B annual cap.
What Employers Can Do Now to Prepare for the FY 2016 H-1B Cap
The annual fiscal year limitation for H-1B visas was reached within the first week of the filing period for FY 2014 and FY 2015. As the number of cap-subject H-1B petitions that will be filed by employers for FY 2016 is uncertain, it is prudent for employers to mail all cap-subject H-1B petitions on March 31, 2015, for delivery to USCIS on April 1, 2015, the first day of the filing period. To that end, employers should immediately begin identifying individuals for whom H-1B sponsorship will be needed to allow sufficient time for H-1B petition preparation, including the time required to file and receive certification of the Labor Condition Application (LCA).
The LCA, which is submitted online to the U.S. Department of Labor (DOL), is a prerequisite to a properly-filed H-1B petition. As part of the LCA, employers must attest that they will pay the H-1B worker the higher of the prevailing wage or actual wage for that position in the geographic area of intended employment. The DOL can take up to 10 days to certify an LCA. Employers must take this processing time into consideration to ensure timely approval of the LCA and the ability to mail the H-1B petition on March 31, 2015 for delivery to USCIS on April 1, 2015. Accordingly, employers are advised to contact the Ogletree Deakins attorney with whom you normally work as early as possible to initiate any cap-subject H-1B petitions.