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2017 H-1B Cap Opens April 3, 2017 – Employers Should Start the Filing Process Now

on Friday, 20 January 2017 in Labor & Employment Law Update: Kara E. Stockdale, Editor

For H-1B nonimmigrant visas subject to the cap, April 1, 2016, is the first day on which the U.S. Citizenship and Immigration Services (“USCIS”) will accept H-1B cap-subject petitions for foreign national professionals in specialty occupations. As April 1, 2017 is a Saturday, the first day of filing will be the following Monday.

Cap-subject H-1B visas become available each year on October 1 — and filings with USCIS can be made no sooner than six months in advance. For the last four years, the H-1B cap has been reached within the first few days of filing and numerous petitions have been returned to employers. As a result, every year there is more pent up demand for H-1B visas and greater numbers of petitions are likely to be filed this year. It is key, therefore, for an employer to act promptly to ensure that a petition for any employee needing an H-1B visa to work in 2017 is filed on April 3, 2017.

What is the H-1B Cap?

Under federal law, a limited number of H-1B visas are available each fiscal year – 65,000 H-1B visas are available 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 H-1B visa is the most popular visa category for employment for foreign nationals and employers as it is available for a wide variety of professional positions, including positions in engineering, IT, science, accounting, teaching, business, and healthcare. Foreign nationals who will hold a “specialty occupation” position can qualify for H-1B status. A “specialty occupation” is a position that requires a minimum of a bachelor’s degree (or the equivalent) in the field of specialty.

Please note that not all H-1B petitions are subject to the cap. Petitions not subject to the cap include H-1B extensions and transfers. In addition, some employers, such as institutions of higher education and their non-profit affiliates, and some individuals, such as certain waiver recipients, are exempted from the cap.

How Does the Cap Allotment Work?

The USCIS accepts H-1B filings for each fiscal year until the entire allotment of 65,000 and 20,000 visas has been exhausted, which, under federal law, may not be less than the first five days of the cap filing period. In 2013, 2014, 2015 and 2016, the allotment of H-1B visas was reached within the first five days. When sufficient petitions are received (or on the sixth day of filing), the USCIS announces the number of petitions received (for 2016 – approximately 236,000 petitions) and whether a lottery is necessary. If there are more petitions than visas available, the USCIS conducts a computer-generated random selection process first on the petitions eligible for the 20,000 “master’s” cap. Those filings not selected in this lottery are then included in the random lottery for the 65,000 regular cap. Petitions not selected during the random lottery are then returned, with the filing fees.

When Should Employers Begin Preparing?

In a word – NOW! With the cap reached immediately after April 1 in 2016, companies hoping to hire H-1B workers or to continue to employ a foreign student must start working on H-1B petitions now to be ready for an April 3 filing deadline. Although the H-1B petitions cannot arrive at the agency until April 3, employers can start to gather information and prepare the necessary paperwork for filing with the USCIS 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 (“USDOL”). While the USDOL is currently processing LCAs within seven business days, the electronic system used to submit this application is often overwhelmed during March and experiences downtimes and delays. Therefore, employers should anticipate a wait time of at least seven to ten days to receive an approved LCA.

However, to file an application, the employers must be able to provide an acceptable “prevailing wage” for the position. If this amount also needs to be obtained from the USDOL, processing times for this request can take up to four months. As a result, an employer should start working on LCAs — and the other necessary paperwork — now.

A recommended timeline is:

• January: 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 for the proposed position.
• February: Prepare, post, and submit any Labor Condition Applications (LCAs).
• March: Prepare and finalize H-1B forms and supporting documents.
• March 31: File petition documentation to be received at USCIS by overnight mail delivery on Monday, April 3.
• April 7: Last day that USCIS will accept cases under the five business days rule.

It is important to start preparing cases early to identify and resolve any potential issues before filing. The USCIS often requests additional information about the position and the qualifications of the H-1B worker, including evidence that the position requires a bachelor’s degree or equivalent in a related field and is a specialty occupation under H-1B rules, that the degree held by the candidate is in a field related to the occupation, and that the candidate’s education and/or experience is equivalent to a U.S. bachelor’s degree.

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 to be received by April 3, 2017. 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