2017 H-1B Cap to Open on April 1

Given improving economic conditions and increased hiring, we anticipate that demand for the limited number of H-1B visas will again this year vastly exceed supply. Last April, over 234,000 cap-subject H-1B petitions were filed with the U.S. Citizenship & Immigration Services (“USCIS”) in the first week of April, and USCIS held a series of lotteries to determine which petitions would be accepted for processing. We are projecting that this year the cap will again be reached within the first week of April and that USCIS will hold another series of lotteries.  As a result we are advising all employers who expect to sponsor an employee for a new H-1B visa to file within the first five (5) days of April (i.e. so the petition is received no later than April 7, 2016).

The H-1B visa is the standard working visa used by foreign nationals to work in the United States with a U.S. employer.  The H-1B “specialty worker” visa is available only to foreign nationals who have a job offer in a position that customarily requires someone with at least a Bachelor’s degree. A foreign degree that is deemed the equivalent of a U.S Bachelor’s degree will satisfy this requirement. Foreign nationals who cannot qualify based on their education alone may also qualify based on work experience, or a combination of work experience and education, that is determined to be equivalent to a Bachelor’s degree.  Employers may request H-1B work authorized status for an initial period of up to 3 years. After this initial period, the Employer may thereafter request an additional period of up to 3 years.  With a few exceptions, once a foreign national has completed 6 years of time in the United States in H-1B status, she will be required to leave the United States for at least a year before she may again be sponsored for an H-1B visa.

H-1B visas are available in a limited number (the “H-1B cap”) on October 1st of each year, the beginning of the fiscal year of the USCIS.  Petitions for the up-coming fiscal year can be filed starting April 1st.

H-1B visas are given out each year in two primary tranches – 20,000 visas for foreign nationals with a U.S. earned Master’s (or higher) degree and an additional 58,200 visas for foreign nationals who qualify generally for the H-1B (by having a U.S. or foreign Bachelor’s degree or a combination of education and experience that is equivalent to a Bachelor’s degree or higher).  Note that there are additional H-1Bs (6,800 in total) that are specifically allocated to nationals of Singapore and Chile and that are available throughout the year.  If USCIS receives more H-1B visa petitions than the two tranche limits in the first week of April, they will accept all cases received during the first 5 business days of the month, assign all of the received cases a number, and randomly select those that will be processed through two separate lotteries.  USCIS will first run a lottery for the U.S. earned Master’s (or higher) degree tranche. Any cases not selected in that first tranche will then be added to the general tranche, and USCIS will run a second lottery. USCIS will cash the checks and issue receipts for all petitions selected in the lotteries. Petitions that are not selected will be rejected and returned with the attached filing fees. It

Employees who are subject to the H-1B cap are those who have not  previously held H-1B status and who have not been counted against the H-1B cap within the past six years.  Within this group typically are:

individuals who hold F-1 student status and are either graduating this spring or summer, or who will be reaching the end of their OPT employment authorization in the next year;
individuals in J-1 scholar or researcher status who are completing their programs this spring or summer;
individuals who are currently outside of the U.S.; and
individuals who have been employed in H-1B status but only with “exempt” institutions or organizations, such as universities, related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations.
Note that the H-1B cap does not apply to a foreign national who is currently in the U.S. in H-1B status and has already been counted against the cap.

A few important points to note:

The CIS takes the position that the foreign national’s eligibility for H-1B status must be established at the time of filing.  Thus, if the foreign national is hoping to apply in the U.S. Master’s degree tranche but has not received her U.S. Master’s degree on or before April 1st, then she is not qualified for the H-1B based on the U.S. Master’s degree.  This person would have to file for an H-1B in the 58,200 visa general tranche based on a foreign or U.S. Bachelor’s degree.
Most commonly, F-1 students have a period of Optional Practical Training (“OPT”) granted as part of their F-1 student status that runs from their date of graduation (May or June) for 1 year.   So, current F-1 student employees who are on OPT will commonly have their OPT expire in May or June of 2015.  If the H-1B visa petition for such an F-1 student is accepted for processing before their OPT grant expires, then their OPT employment authorization is automatically extended until October 1st, when their H-1B status is activated.  The timing of the H-1B petition and the expiration of an employee’s OPT is therefore critical.
F-1 students who are graduating in a program that is designated to be within the Sciences, Technology, Engineering or Mathematics (a “STEM”) Program and who will be working with a U.S. employer that is registered with the eVerify system, are eligible for a 17 month extension of their OPT after the initial 12 month period has run.  Thus, F-1 students in STEM Programs will be able to take advantage of up to 29 months of employment authorization after graduation in OPT status and will have several opportunities to apply for an H-1B visa.  Please Note: the USCIS has issued proposed regulations that significantly change the STEM extension rules in a number of favorable ways including increasing the extension period from 17 months to 24 months.  We expect that these regulations will be finalized before May and will provide you with information about them when they are finalized.
It is vital that employers determine which of their foreign employees or prospective employees to whom they have made offers will require an H-1B this year.  The rules (as outlined briefly above) are complex and every case requires a different analysis.  It is thus crucial that you collect the necessary data and begin a discussion with your immigration legal counsel as early as possible so that appropriate plans can be made to increase the chances of your foreign employees being able to maintain legal status and work authorization.

Please contact Donald Parker, John Gallini or Grant Godfrey if you have any questions about the new H-1B visas that are becoming available.

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Parker Gallini LLP
Business Immigration Law Firm
460 Totten Pond Road, Suite 350
Waltham, MA 02451
(781) 810-8990

www.parkergallini.com

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