United States: The H-1B Cap Crunch is Upon Us, Here are Your Key Dates

The Fiscal Year 2018 H-1B season is about to enter its "crunch time" – a perennial tradition where cap-subject employers must timely file their petitions in order to be afforded a chance at securing an October 1 start date for their employees. We are reaching out to all of our clients to advise on the key dates for this year. If your organization seeks H-1B cap-subject workers this cycle, we urge you to contact us immediately to discuss plans and timing.

Each fiscal year USCIS is afforded 85,000 H-1B petitions that can be approved under its congressionally-mandated cap. Petitions may only be filed as early as 180 days prior to October 1. A total of 20,000 of such visas are awarded to beneficiaries who have graduated a U.S. institution of higher education with a Master's Degree or higher. The remainder are available for all other qualifying cases. In recent years as the economy has rebounded from the 2008 financial crisis, demand has far exceeded the supply. This culminated in last year's season which resulted in 236,000 petitions filed during the first week, or 278% percent of the annual capacity.

Because so many petitions are filed, USCIS issues a lottery amongst all timely received during the first five business days of April. Any petitions not selected – or filed thereafter – are rejected. Consequently, cap-subject filings must be timely filed this year to have a chance at selection as it is virtually certain that more than 85,000 petitions will be filed in the first 5 business days of April.

Key Dates

Click here to view calendar for Key Dates

Explanations

FEIN Verification: Some employers who have not filed a Labor Condition Application ("LCA") before must have their Federal Employer Identification Number verified by the U.S. Department of Labor before the LCA can be submitted. Processing times for this step vary. We caution employers to have verification submitted no less than 5 business days prior to intended LCA filing, indeed there is no downside to doing so now.

At minimum, we are urging our clients who have never filed an LCA to contact us with FEIN documentation in hand no later than March 15 to prepare for a March 31 filing. Employers who have previously submitted LCAs with their present FEIN need not undertake this step.

Labor Condition Application Filing: Prior to filing the H-1B petition, an LCA must be submitted to the U.S. Department of Labor for certification. Certification must, by regulation, be completed within 7 working days. Accordingly, the last possible day to file an LCA for a March 31 dispatch to USCIS is March 22. Likewise, the last possible day to file an LCA during the lottery window is March 28.  

Notwithstanding the foregoing, the LCA web site is prone to crashing from heavy traffic and adjudication delays are possible even despite the regulatory mandated timeframe. We urge our clients to prioritize efforts to ensure LCAs are filed as early as feasibly possible.

Petition Filing:

USCIS does not follow the "mailbox rule" recognized in other legal contexts – petitions must be timely received to be counted as filed. Moreover, service center mailrooms are closed for deliveries on holidays and weekends.  Accordingly, the first day a petition may be dispatched to USCIS is Friday, March 31, which would be delivered on Monday, April 3. Likewise, all cap-subject petitions would need to be dispatched to USCIS by April 6 because the last receipt day is April 7. We urge our clients to file as early as possible given the possibility of delivery delays.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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