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.