The (Annual) H-1B Silly Season

By Tien-Li Loke Walsh

The H-1B season starts on April 1, 2016 when the U.S. Citizenship and Immigration Services (USCIS) begins accepting H-1B visa petitions for FY 2017-2018 (i.e. an October 1, 2016 start-date). For the last 3 years, USCIS reached the cap within the filing period (first 5 business days in April). In April 2013, USCIS received approximately 124,000 H-1B petitions during the 5-day filing period. In April 2014, it received approximately 172,000 H-1B petitions during the 5-day filing period. Last April, USCIS reached the cap with approximately 233,000 H-1B petitions filed during the five-business-day filing period. We expect USCIS to hit the cap again this coming April (FY 2017).

The usage for the general cap (GC) and the advanced degree cap (ADC) for the past 7 years has been as follows:

• FY 2010 – both caps reached December 21, 2009
• FY 2011 – GC reached January 26, 2011; ADC reached December 22, 2010
• FY 2012 – GC reached November 22, 2011; ADC reached October 19, 2011
• FY 2013 – GC reached June 11, 2012; ADC reached June 7, 2012
• FY 2014 – both caps reached April 5, 2013
• FY 2015 – both caps reached April 7, 2014
• FY 2016 – both caps reached April 7, 2015

 
For those H-1B nerds (like us!), here is a comparative H-1B trend for the last 7 years.
 

H-1B Trend: General Cap

 

H-1B Trend: Advanced Degree Cap

 

We encourage all interested employers and foreign nationals to contact us immediately to either identify potential H-1B candidates and/or prepare H-1B paperwork for timely filing before the quota is reached. While H-1B petitions will be accepted during the first five business days in April, employers should ideally file their H-1B petitions no later than Thursday, March 31st, 2016 (to be delivered on Friday, April 1, 2016) to ensure that they capture one of the limited quota visas.
 

 
In the event that USCIS receives more than 85,000 H-1B applications during the initial filing period, it will run a computer-generated lottery. USCIS will likely suspend the premium processing service for cap-subject H-1B petitions until after the H-1B lottery is completed. Petitions for the advanced degree cap are selected first. If the advanced degree cap is reached, higher degree applicants get a second chance as part of the regular cap. If selected, USCIS will then adjudicate the H-1B petition based on the merits of the case. For cap-subject petitions that are not randomly selected, USCIS rejects and returns the petition with filing fees, unless it is found to be a duplicate filing. In 2015, most employers were notified of selections from the H-1B lottery results by the end of May. Based on the volume of applications received in 2015, USCIS did not return rejected applications until as late as July.
 

But, don’t panic just yet! Keep the following in mind:

• There are still H-1Bs for Chileans and Singaporeans.
• The H-1B quota does not apply to cap-exempt organizations – anyone who will work for an institute of higher education or a related or affiliated non-profit entity or a non-profit research entity or a government research organization can apply for an H-1B visa at any time of the year. These types of employers are not subject to the cap.
• “Cap-gap” for F-1 students: most F-1s with valid OPT will most likely be covered by the cap-gap provision, so they can apply for their H-1Bs as part of the next fiscal year (file on April 1, 2016 for an October 1, 2016 start date). By filing a timely-filed H-1B application on or after April 1, 2016 and before the OPT expiration date, the F-1’s status and employment authorization will be automatically extended until September 30, 2016. “Cap-gap” ensures that there will be no “gap” in F-1 status or OPT employment authorization.
• H-1B Change-of-employer petitions for private industry jobs are not impacted: if someone has been counted towards a previous year’s H-1B quota and is changing jobs, an employer can file the H-1B “transfer” at any time of the year. The H-1B employee is not subject to the H-1B cap again. However, if someone is transferring from a cap-exempt organization into private industry, s/he must be counted towards the cap and will be subject to the quota.
• If someone has had a private industry H-1B in the past, but is in a different nonimmigrant status (e.g. H-1B changed status to F-1 to get an MBA), s/he has been counted towards a previous year’s H-1B quota.  That person may change status back to H-1B and is not subject to the H-1B cap. An employer may file an H-1B petition for the remainder of time for that person at any time of the year.
• H-1B Extensions:  The H-1B cap does not apply to extensions.

 

Based on the dwindling H-1B numbers, it’s time to start looking at other visa options:

• FIVE lucky countries have free-trade agreements with the United States: Candidates from Australia (E-3), Canada (TN NAFTA), Mexico (TN NAFTA), Chile (H-1B1) and Singapore (H-1B1) may have alternative visa options based on these free trade agreements.
• Professionals working in the arts, motion pictures and television and entertainment industries may qualify for an O or P visa (e.g. VFX artists, graphic designers, architects, animators, technical directors, fashion designers, art directors, creative directors, curators, chefs, industrial designers, journalists, writers, producers, etc.).
• Scientists and researchers may qualify for J or O visas.
• Athletes may qualify for an O or P visa.
• Entrepreneurs and investors may qualify for an E-1 or E-2 visa.
• Interns and trainees may qualify for J-1s or H-3 visas.
• Multinational executives, managers and specialized knowledge professionals working for global companies may qualify for L-1 visas.