United States: Critical Filing Dates For FY 2016 H-1B Cap

Employers who wish to sponsor H-1B workers for Fiscal Year 2016 can begin filing petitions on April 1, 2015 for a start date of October 1, 2015.  The H-1B visa is used by businesses who wish to employ foreign nationals to work in a specialty occupation requiring theoretical or technical expertise.  For FY 2016, cases will be considered accepted on the date that U.S. Citizenship and Immigration Services (USCIS) takes possession of the petition, not on the date it was postmarked.

Annual Limit

There is an annual limit of 65,000 visas available for H-1B petitions, with an additional 20,000 reserved for individuals who have earned a U.S. master's degree or higher.  USCIS received over 170,000 last year and an even greater number is expected this year.  USCIS accepted petitions for the first 5 business days before announcing that it had received a sufficient number of H-1B petitions and that the cap was closed.  This year, we encourage all employers to file H-1B petitions on Tuesday March 31, 2015, although USCIS will again accept applications for the first five business days, until April 7, 2015.   

Lottery System

If USCIS receives more than enough petitions to meet the standard and advanced-degree quotas during the first five business days of the filing season, as it did last year, it conducts a computerized lottery to choose cases for processing. A lottery of advanced-degree petitions to select enough cases to fill the cap exemption of 20,000 is conducted first. After completing the advanced-degree lottery, the remaining cases are put into a second lottery to select enough petitions to meet the standard quota of 65,000.  

Key Filing Deadlines

In order to file an H-1B, an employer must have a certified Labor Condition Application (LCA) from the Department of Labor (DOL).  Currently, the DOL is taking 7 days to certify an LCA, however, regulations permit the DOL to take up to 7 working days, i.e. 10 days.  In addition, if your company has not filed an LCA since 2008, there is a chance you will not be registered with the Department of Labor.  As such, we will need to first register your company; this process takes an additional 3 business days.  Also, in previous years, the high usage rate of the online LCA system towards the end of March caused the website server to shut down or function extremely slowly.  Early filings are imperative to avoid technical delays.   

Moreover, if your prospective H-1B employee does not have a U.S. degree, a degree equivalency must be conducted by an accredited credential evaluation company.   Although most companies offer 24-hour turn around at this time of year, due to high demand levels, this cannot be guaranteed close to the H-1B cap filing deadline.     

If your organization is planning to petition for H-1B employment in FY 2016, please get in touch with your Littler contact immediately to discuss the process. 

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