News - April 2016


USCIS Announces H-1B Cap for Coming Fiscal Year Has Been Reached

The USCIS announced on Thursday, April 7, 2016 that it had received enough new H-1B petitions to consume all of the 65,000 available H-1Bs for this coming fiscal year, which begins on October 1, 2016 and ends on September 30, 2017. The USCIS has also stated that all of the 20,000 H-1B numbers for beneficiaries holding advanced degrees from U.S. universities have been allocated.

The agency reported that it received over 85,000 H-1B petitions during the first five business days of April 2016, and will now conduct a lottery to determine which petitions would be processed.

The announcement confirmed that the regular cap was reached less than one week after the first day that the USCIS could accept H-1B petitions under the FY2017 cap, which was Friday, April 1, 2016. While the congressionally-mandated total H-1B cap for FY2017 is 65,000, over ten percent of those numbers are reserved for nationals of Chile and Singapore under the Free Trade Agreements (FTAs) that took effect January 1, 2004. Petitions for nationals of Singapore and Chile may still be accepted at this time.

Cap-Exempt Cases, Filings on Behalf of Current H-1B Workers Continue to Be Accepted

USCIS will continue to accept H-1B petitions that are not subject to the numerical limitation. Employers should be aware that the cap does not affect H-1B employees who: (1) change employers; (2) apply for extensions of stay; and, (3) change jobs where the employer files to amend a previously approved petition. Also, the cap does not apply to employees of institutions of higher education and related non-profit entities, non-profit research organizations, or governmental research organizations. Also, the cap does not apply to for-profit employers hiring workers to be “employed at” a cap exempt facility.

In order to obtain more H-1B numbers, Congress will need to enact new legislation. This is unlikely to happen in the near future.

Employers who miss this year’s cap will have to wait to file new H-1B petitions commencing in Fiscal Year 2018. Those H-1B numbers will only be available for start dates on or after October 1, 2017. Employers may file up to six months in advance of the H-1B visa or status start date, which will be April 1, 2017 at the earliest, and should plan their case strategy accordingly.

 

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