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Fiscal Year 2017 H-1B Cap Season Quickly Approaching

February 1, 2016

On Friday, April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the Fiscal Year 2017 cap (FY 2017).

 H-1B Cap-Subject Petitions

The number of approved H-1B petitions issued each year is commonly referred to as the H-1B cap. Each year, 65,000 regular H-1B visas, plus an additional 20,000 for those who have earned a master’s degree or higher from an accredited U.S. institution, provided the degree is relevant to their offered position. U.S. employers may petition for H-1B employees beginning April 1 of each year.

Beneficiaries of successful FY 2017 H-1B petitions will be eligible to begin work in the U.S. on October 1, 2016. Employers and potential H-1B employees should begin the process of preparing their petitions as soon as possible in order to file on April 1. Miller Canfield is currently accepting H-1B cap-subject cases for FY 2017.

About the H-1B Lottery

USCIS is required by law to accept H-1B cap petitions for a minimum of five business days. If USCIS receives more petitions than there are cap numbers available within the first five business days of April, it will cease accepting petitions at the end of the fifth business day. USCIS will then use a computer-generated random selection process, or lottery, to select petitions for processing.

A lottery has been conducted the past three years for H-1B cap filings. During FY 2016, USCIS received nearly 233,000 petitions within the first five business days of April. Similarly, more than 170,000 petitions were received during the first five business days of April for the FY 2015 cap season. We anticipate the trend of a short filing season to continue and culminate in another lottery this year.

Plan Ahead

Due to the anticipated short filing period, advanced planning will ensure H-1B cap petitions are timely received by USCIS. Documents must be collected and reviewed to determine eligibility for H-1B employment and necessary supporting documents, such as foreign credential evaluations, obtained. The H-1B petition must also be filed with a certified Labor Condition Application (LCA), which takes no less than seven business days to process. The sooner work on the H-1B petition is initiated, the more likely the H-1B petition will be filed and received by USCIS on April 1.

H-1B Alternatives

Any cap-subject H-1B petitions that are not selected in the lottery will be returned by USCIS with filing fees. In the event employers are not successful in the lottery or miss out on the H-1B cap entirely, visa alternatives to employ and retain foreign nationals may be available. Strategies regarding potential alternatives to the H-1B cap can be determined on a case-by-case basis through consultation with our experienced immigration attorneys.

Rebecca Mancini