U.S. Citizenship and Immigration Services (USCIS) announced yesterday that it has reached the H-1B cap for fiscal year (FY) 2016 and will no longer be accepting H-1B cap cases.  USCIS has yet to provide the number of petitions received; however, last year’s FY2015 cap was oversubscribed by approximately 87,500 petitions.  We anticipate the numbers to be even higher for FY2016.  While an increased number of filings will confirm the U.S. economy continues to improve, it means a greater number of employers and individuals will be looking to alternative visa options when they leave H-1B cap season empty handed.

USCIS has further announced that it will conduct a computer-generated random selection process (also known as the “Lottery’), first on petitions filed under the 20,000 U.S. Master’s Degree exemption and then on cases filed under the 65,000 regular category, to select a sufficient number of petitions for the cap. USCIS has yet to announce when they will begin this selection process. From past experience, we expect the process to occur immediately and notices of acceptance will start to be sent out to employers and their representatives in the next 7‑14 days.  We expect rejected cases that do not make this year’s H-1B cap to be returned to employer representatives in the next 3-6 weeks.

Now that the cap is closed, employers cannot file new H-1B petitions until April 2016 for October 2016 start dates.  Please note that cap-exempt H-1B filings are not affected, so it is possible to still file H-1B extensions and H-1B change of employer petitions.  Also, cap-exempt organizations, such as institutions of higher education, may continue to file H-1B petitions despite this year’s cap being met.

Please consider the following:

  • Until the lottery process is completed, USCIS will not be making any communications about petitions filed under this year’s cap.
  • Anyone whose H-1B petition is rejected will need to do one of the following:
    • Secure an F-1 STEM (Science, Technology, Engineering, or Mathematics) OPT (Optional Practical Training) 17-month extension of work authorization. Only students whose degree fields are specifically listed will qualify for this 17-month extension.  Employers must be enrolled in E-Verify for students to obtain this work authorization benefit.  For I-9 purposes, employers should note that individuals who file for Employment Authorization Documents (EADs) under this category are eligible to work pursuant to an EAD receipt notice.
    • Apply for H-4 EADs for employees whose spouses hold H-1B status and meet the qualifying criteria: (a) the H-1B worker is a beneficiary of an approved I-140, Immigrant Petition, or (b) the H-1B worker has been granted an extension of H‑1B status beyond the 6-year limitation pursuant to AC-21.
    • Obtain extensions of status for anyone already holding work authorization under a different visa category (i.e. TN or L-1 status).
    • Secure an alternative work visa.  Companies should assess this possibility with outside immigration counsel.
    • Stop working for the company once a F-1 student’s OPT EAD expires and (a) secure alternative U.S. immigration status (such as another period of stay in F-1 status or switching to B-2 (tourist) status); or (b) leave the country before the end of the student’s 60-day F-1 grace period.

We recommend employers assess alternative options while waiting to see whether a particular case was accepted or rejected for processing by USCIS.  We will keep you updated as to any further developments that arise.

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Photo of Ian Macdonald Ian Macdonald

Ian R. Macdonald Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. He focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital

Ian R. Macdonald Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. He focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital domestically and internationally, including secondment agreements, benefits transferability, local host country employment concerns and immigration.

Ian and his team work closely with companies to manage and modify, where needed, corporate immigration programs to maximize efficiency, service and regulatory compliance levels. He is experienced with the full range of business immigration sponsorship categories (visas and permanent residence), anti-discrimination rules to reduce or eliminate risk of employment litigation, employer sanction cases, and I-9 and E-Verify compliance. Ian assists clients with establishing risk-based performance standards (RBPS) and Department of Homeland Security protocol, providing risk assessment assistance to corporations subject to Chemical Facility Anti-Terrorism Standards (CFATS) and assisting clients with ITAR/Export Control compliance within the immigration context.

Ian has developed strategic relationships abroad that he utilizes when working with clients to ensure compliance with foreign registration requirements. He is experienced with analyzing complex global mobility opportunities on country-specific matters to facilitate the transfer of personnel. Ian is also experienced in counseling employers on immigration strategy as well as immigration consequences of mergers and acquisitions, reduction in workforces, and furloughs.

Prior to joining the firm, Ian worked for the United Nations, various non-governmental think tanks and corporate law firms in London, Washington, D.C., New York and Atlanta.

Photo of Courtney B. Noce Courtney B. Noce

Courtney B. Noce co-chairs the Immigration & Compliance Practice. She focuses her practice on U.S. business immigration, compliance and enforcement actions, as well as global immigration. She represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging

Courtney B. Noce co-chairs the Immigration & Compliance Practice. She focuses her practice on U.S. business immigration, compliance and enforcement actions, as well as global immigration. She represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging from permanent residence (PERM, National Interest Waivers, Extraordinary Ability/Outstanding Researcher, Multi-National Managers, among others) to nonimmigrant visa categories (H-1B, H-3, J-1, L-1A/B, O-1, TN). Courtney has a particular understanding of working with the retail industry and the ever-evolving challenges this industry faces.

Courtney works closely with companies on complex challenges associated with I-9 employment verification, enforcement actions, as well as H-1B and LCA compliance. She provides proactive strategies in the form of onsite training, internal audits and reviews, as well as deploying best practices to minimize exposure and liabilities in the event of government investigations.

Courtney also assists multinational clients in the area of global mobility and immigration. She has experience helping companies move key personnel into all parts of the world.

Prior to practicing law Courtney worked with the Georgia Department of Economic Development as a Business Development and Project Manager. In this role, she helped Life Sciences and Technology companies move to and expand in the State of Georgia. She worked frequently with international and domestic companies addressing global mobility needs, and is acutely aware of the important role immigration plays for global companies.

Courtney has studied, lived, and worked in Canada, France, and Italy. She is fluent in Italian, proficient in French and has basic Spanish skills.