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The 2017 Fiscal Year H-1B Quota Opens on April 1, 2016 – Are You Prepared?

inside-the-esb-2-905831-m.jpgThe temporary (nonimmigrant) H-1B visa is a highly sought-after work visa. In general, in order to qualify for the H-1B, both the foreign worker and the offered job position must meet certain requirements. The foreign worker must possess a U.S. bachelor’s degree or its foreign equivalent, and the position must qualify as a “specialty occupation,” which means the job itself must require a U.S. bachelor’s degree in order to perform the job’s duties.

There is an annual limit on how many H-1B visas can be granted each year (although certain types of cases may be exempt from this limit). In each fiscal year, which begins on October 1, there are 65,000 new H-1B visas available, with an additional 20,000 that are set aside for applicants who earned Master’s degrees at U.S. universities. These limits are referred to as the H-1B Cap and the Master’s Cap, respectively. Due to these limitations, it is very important for employers and prospective employees to be prepared to submit the H-1B Petition on April 1.

Why Submit the H-1B Petition on April 1?

The April 1 submission date has arisen because an employer cannot submit an H-1B petition with a start date of employment that is more than six months in the future. Since all cap-subject H-1Bs must have an October 1 start date, employers must roll back the clock six months in order to file their petitions as soon as possible.

However, do not despair if your petition is not quite ready for submission on April 1. Current USCIS regulations mandate that the agency accept H-1B petitions for the first five business days in April. Bear in mind that in past years, the agency has received more petitions than it can grant, and thus USCIS typically does not accept any petitions past the five business days.

The H-1B Lottery

Since there is a very high demand for H-1B visas, nearly every year USCIS receives more petitions than are allowed under the H-1B cap. When this occurs, USCIS conducts the “H-1B Lottery” and randomly selects applicants until the caps are filled.

What Does an H-1B Petition Include?

The precise requirements for any particular petition will vary depending on the specific circumstances of that case. However, all H-1B petitions must include an approved Labor Condition Application (LCA) provided by the U.S. Department of Labor (DOL). The LCA outlines the terms and conditions of the prospective H-1B employment and is submitted to the DOL electronically through the agency’s website. If the LCA is correct, the DOL certifies it and sends it to the employer for inclusion in the H-1B Petition.

Along with the LCA, each H-1B visa petition must include the Form I-129, Form I-129 H-1B Supplement, and Form I-129 Data Collection Sheet. These documents must also be accompanied by the correct USCIS filing fees, a support letter from the employer, and proof that the worker is qualified to perform the job duties of the specialty occupation. This proof is typically in the form of copies of degrees, transcripts, licenses, or employment verification letters from previous job positions.

The Rant

The demand for the H-1B visas greatly exceeds the inventory available. It is a valuable program that provides employers with needed highly skilled labor which benefits the U.S. workforce and economy. Unfortunately, employers’ needs are not being met. In 2015, there were 233,000 petitions filed within the first week of availability, and these petitions were placed into a lottery pool where the government identified the 85,000 petitions that would be processed. That’s a 64% rate of cases being rejected due to the 85,000 cap. This year, we expect the rate of acceptance to be even lower. So our message to employers trying their luck in this year’s lottery is simple: Good Luck!

Additional Blog Posts:

The Government’s War on H-1Bs, ImmigRantings, October 11, 2012
Obama Signs Immigration Executive Order, ImmigRantings, June 15, 2012
Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012