Legal Updates

Employers Should Start Planning Now For Fiscal Year 2017 H-1B Visas

Beginning April 1, 2016, employers will be permitted to file petitions for H-1B visas for start-work dates of October 1, 2016 (the beginning of fiscal year 2017) (“FY2017″), or later.

Based on the unprecedented number of H-1B petitions – approximately 233,000 – submitted during last year’s filing window, it is expected that the 65,000 annual cap for H-1B visas will be reached shortly after the upcoming filing window opens on April 1, 2016.  Thus, employers who intend to use the H-1B program to hire foreign workers for FY2017 should begin planning now.

H-1B Visas

H-1B visa petitions are filed on behalf of foreign nationals who work in occupations that require the application of highly specialized knowledge and completion of a Bachelor’s degree or higher in the specialty occupation.

The types of individuals for whom employers commonly file H-1B visa petitions include:

  • Individuals residing outside of the United States who are subject to the annual H-1B cap (and who do not fall within the “remainder option” exception);
  • F-1 student status holders who need H-1B status to continue working after their optional practical training has expired;
  • Individuals who currently hold “TN” status under the North American Free Trade Agreement (“NAFTA”) and need to commence the green card process;
  • L-1s who want to pursue green cards and need the ability to extend their work authorization beyond six years;
  • J-1s who have limited practical training time remaining and/or live outside the United States; and
  • H-4s who are seeking H-1B status in order to work in the United States.

Notably, the 65,000 annual H-1B cap does not apply to H-1B visa transfers or extensions, or to foreign nationals working for educational or non-profit research organizations that are exempt from the cap. Also, independent of the annual H-1B cap, 6,800 H-1B1 visas are reserved annually for citizens of Chile and Singapore, as are 10,500 E-3 visas for Australian nationals, pursuant to treaty obligations.

In addition, 20,000 further visas (commonly referred to as “advanced degree” H-1B visas) will be made available during FY2017 to foreign nationals who hold advanced degrees from U.S. academic institutions.  Employers should consider using this category for candidates who meet the educational requirements of the advanced degree H-1B. However, employers should not file multiple H-1B applications for a single employee under different filing categories, as this would violate the filing rules.

Recommendations

We strongly encourage employers to begin preparing new H-1B petitions promptly, as the annual allotment of visas is likely to be exhausted during the first five days of filing, beginning on April 1, 2016.

If U.S. Citizenship and Immigration Services (“USCIS”) receives enough H-1B petitions to meet the quota during this five-day window, it will use a random, computer-generated lottery to determine which petitions will be processed. In light of the unprecedented number of petitions submitted last year, it is expected that USCIS will need to resort to the H-1B lottery again this year. Thus, it is critical for employers to have their H-1B petitions ready when the filing period opens on April 1, 2016.

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Please feel free to contact us if you have questions or require assistance with the H-1B filing process. The Firm regularly assists employers with preparing and processing H-1B and other employment-based non-immigrant and immigrant visa applications, and we would be happy to help.