This is a reminder that April 1, 2016, is the first day the U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions filed on behalf of foreign nationals for employment commencing on or after October 1, 2016 – i.e., for fiscal year (FY) 2017.
Last year, on April 7, 2015, only the fifth business day of the filing period, USCIS announced that it had received enough H-1B petitions to reach the statutory cap of 65,000 visas for FY 2016. USCIS also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the masters cap. In all, USCIS received nearly 233,000 H-1B petitions and on April 13, 2015 USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the foregoing caps.
It is unknown at this time how the number of H-1B filings beginning on April 1, 2016 will compare to the number of petitions USCIS received last year. With the economy continuing to improve, and more hiring taking place, it is likely that the statutory quota will again be exceeded soon after the period for filing H-1B petitions opens.
As such, employers who desire to hire H-1B foreign nationals subject to the statutory quota should consult with immigration counsel as soon as possible regarding filing on April 1, 2016, or as early thereafter in the cycle as is feasible.
The H-1B visa classification is for temporary employment of foreign professionals in specialty occupations, including but not limited to, information technology professionals, business analysts, financial managers, engineers, architects, allied health professionals such as physical therapists as well as fashion models.
Exemptions from the annual quota may apply in instances of:
- Requests for extensions of stay for current H-1B workers;
- Amendments to H-1B petitions requesting a change in the terms of employment for current H-1B workers; and
- Change of employer petitions for individuals already in H-1B status.
H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the H-1B cap.
In addition, petitions for new H-1B employment are not subject to the annual quota if the foreign national will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.
Employers desiring to hire H-1B foreign nationals who believe a quota exemption may apply to them should consult with immigration counsel to analyze their situation well before the April 1, 2016 H-1B petition filing season begins.
Authors:
Mariana Ribeiro Jay Carmichael Beatriz Osorio Sarah Tobocman
