It’s that time of year again! The April 1, 2016 “deadline” for the filing of H-1B cap cases for Fiscal Year 2017 is rapidly approaching, and given pent-up demand, we fully expect the H-1B cap to be reached on opening day. As usual, USCIS will continue to accept petitions during the first five (5) business days; i.e., through Thursday, April 7, 2016. However, once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions for a full year, until Monday, April 3, 2017. As such, we strongly encourage you to identify any employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely April 1 filing.
HR ACTION NEEDED: Assess Your Cap-Subject H-1B Needs:
H-1B visas are available for specialty (professional) occupations requiring at least the attainment of a bachelor’s degree or its equivalent in a relevant discipline. For current or transferring employees, U.S.-based employers should take the time to consider who the Company may need to sponsor for an H-1B for Fiscal Year 2017.
Here are some of the most common candidates for an H-1B under the annual cap:
- F-1 visa holders (student interns / recent graduates) who are working for you pursuant to an Employment Authorization Document issued in connection with an approved period of post-grad Optional Practical Training (OPT);
- F-1 visa holders (student interns) who are working for you while in school pursuant to university-approved Curricular Practical Training (CPT); J-1 visa holders (interns/trainees) whose training programs will expire and who will need a change their status from J-1 to H-1B in order to continue working for you;
- TN employees (Canadian and/or Mexican NAFTA professionals) who may require an H-1B to be eligible to apply for adjustment of status to that of a lawful permanent resident;
- L-1B visa holders (intra-company transferees with specialized knowledge) approaching the end of their 5 years of L-1B eligibility who may need to switch to an H-1B to gain an additional year of work authorization and for whom a change of status is a necessary component to planning your long-term strategy of pursuing lawful permanent residence for that employee;
- O-1 visa holders who are coming up for expiration within the next year as O-1s are renewable in only one year increments (as compared to a 3 year period for an approved H-1B); and
- Potential candidates who are living and working abroad and have not been previously counted against the H-1B cap.
PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B workers seeking to file an extension of stay or a transfer petition are not subject to the H-1B cap.
The Importance of Early Preparation:
Cap-subject H-1B petitions are accepted by USCIS on a “first-come-first-serve” basis. Any petitions filed after the cap is met will be returned and cannot be re-filed until the following year.
To assure a timely filing, Labor Condition Applications (“LCAs”) should be submitted to Labor Department by the beginning of March, and petitions should be ready for filing before April 1, 2016. With that said, gathering the necessary supporting documentation and preparing the H-1B visa filing materials can be time consuming. Preparation includes assembling background and educational documents, drafting and signing letters and forms, and submitting an LCA with the Labor Department for certification. Early preparation is therefore essential.
If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.
Please follow us on Twitter @ML_Immigration to stay tuned for further developments with the H-1B cap filing season.