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2016-17 H-1B Cap Opens April 1st – It’s Not Too Late to Get Started!

on Friday, 26 February 2016 in Labor & Employment Law Update: Sarah M. Huyck, Editor

April 1 is the first day on which the U.S. Citizenship and Immigration Services (“USCIS”) will accept H-1B cap-subject petitions for foreign nationals in specialty occupations to begin employment on October 1. For the last few years, every available H-1B visa has been claimed in the first few days of filing, making it vital for an employer to file a petition for any employee needing an H-1B visa to work from October 1, 2016 to October 1, 2017 on or shortly after April 1.

H-1B Cap Re-Cap

Under federal law, 65,000 H-1B visas are available each fiscal year under the regular cap and an additional 20,000 are available for foreign nationals who have graduated from a U.S. college or university with a master’s degree or higher. The USCIS accepts filings beginning April 1 until both allotments have been exhausted. Under federal law, this acceptance period may not be less than five business days. When sufficient petitions are received or on the sixth day, the USCIS announces whether a lottery is necessary. A computer-generated random selection process is performed first on the petitions eligible for the 20,000 “master’s” cap. Those filings not selected are included in the 65,000 regular cap lottery. Petitions not selected are returned, with the filing fees.

When Should Employers Begin Preparing?

Although the H-1B petitions cannot arrive at the agency until April 1, employers can start to gather information and prepare the necessary paperwork for filing today.

A key piece of the petition documentation for an H-1B petition is the approval and certification of a labor condition application (“LCA”) from the US Department of Labor. While the DOL usually processes LCAs within seven business days, the electronic processing system is often overwhelmed during March and experiences downtimes and delays that can increase the wait time to ten days or longer for an approved LCA.

Our recommended timeline is:

  • January-February: Finalize list of potential H-1B candidates, gather information and documentation from the candidates, and work with legal counsel to ensure prevailing wage data is available (and acceptable) for the proposed position.
  • First Week of March: Prepare, post, and submit (LCAs).
  • March: Prepare and finalize H-1B forms and supporting documents.
  • March 31: File petition to be received at USCIS on Friday, April 1.

With continuing increases in the demand for H-1B visas and comprehensive immigration reform stalled, employers need to be prepared to file their H-1B cap-subject petitions by April 1, 2016. Please feel free to contact us if we can be of assistance.

Amy Erlbacher-Anderson

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500