January 14, 2016
Minsky, McCormick & Hallagan
With April 1, 2016 fast approaching, the time to begin preparing for an H-1B cap filing is now. Start off the new year on the right foot and dive into the process to hire or maintain those workers who are valuable to your company. The first day to file for a “cap-subject” H-1B for the upcoming fiscal year (“FY”) is April 1, 2016. And with the complexity of the process in preparing petitions for filing, January is the time to begin this process. If selected and approved, the start date for these H-1Bs will be October 1, 2016.
What’s the H-1B cap? Congress limits the number of H-1Bs that may be approved each fiscal year. These are for new petitions for those not currently in H-1B status. The cap provides 65,000 H-1Bs for individuals with Bachelor’s degrees or equivalent, and an additional 20,000 for those with Master’s degrees from U.S. universities. Based on the number of filings during the past two years, the number of H-1B applications this year will likely once again exceed the supply and result in a lottery.
What do the numbers say? Many more H-1B petitions are being filed in recent years than the available numbers. In 2014 (fiscal year 2015), 172,500 H-1B petitions were filed, including petitions filed for the advanced degree exemption. In 2015 (fiscal year 2016), a staggering 233,000 H-1B petitions were received by USCIS during the filing period, including petitions filed for the advanced degree exemption. As the economy continues to improve, many expect that the number of cap-subject applications will again increase this year, further diminishing the chances of getting selected in the lottery.
How does the lottery work? USCIS accepts cap-subject H-1B petitions for one week, beginning on April 1, 2016. It then segregates the petitions that are filed for individuals with Master’s degrees from U.S. universities from the remaining petitions. First, a computer-generated random selection process, or lottery, is used to determine which advanced degree petitions are accepted; all unselected advanced degree petitions then became part of the lottery for the general 65,000 limit. USCIS will reject and return all unselected petitions with their filing fees, including any petitions found to be duplicate filings.
Why it is time to start now: It takes time to properly prepare an H-1B petition. Carrying out the necessary analysis and gathering the documentation required for each of the above points can be difficult and time-consuming. In addition, each petition must include a Labor Condition Application (Form 9035) certified by the United States Department of Labor, which takes seven business days after filing, or longer if the employer has to verify its FEIN beforehand. Petitions also often include educational evaluations, experience evaluations, translations, and evidence that the position being offered is a specialty occupation requiring an individual with a specific degree. Given all of this, it makes sense to begin the process as early as possible to ensure a timely filing.
If you have questions about H-1Bs and the H-1B cap, the attorneys at Minsky, McCormick and Hallagan are available to help.