H-1B Cap Season - It's Time to Prepare for April 2017

January 5, 2017

On April 3, 2017, the filing period will begin for new H-1B petitions to be counted against the annual H-1B quota (H-1B cap) for the fiscal year beginning October 1, 2017. We strongly encourage employers to begin determining now which of their current or future employees will require H-1B status.

In years past, annual limits on H-1B visas have created a surge of petitions filed on the first day they become available. There are only 65,000 visas available per fiscal year for foreign nationals who might hold student visas, L-1B status or foreign talent that U.S. employers may wish to transfer to the United States. An additional 20,000 H-1B visas are set aside for those who have graduated from a master's degree program in the United States. Last year, the annual limit was exceeded within the first five days of filing. This resulted in a computer-generated lottery for available visa numbers. Close to 236,000 petitions were submitted for 85,000 visas in April 2016.

A U.S. employer can file an H-1B petition with United States Citizenship and Immigration Services (USCIS) on behalf of a qualified foreign professional provided that the job requires (and the employee possesses) at least a bachelor's degree or its equivalent in a particular field. An H-1B employer also must attest to paying the same salary and benefits packages normally offered to U.S. workers in similar positions and must also attest to adherence to the H-1B program's specific public notice and recordkeeping requirements.

The H-1B petition is preceded by a Labor Condition Application (LCA) certified by the U.S. Department of Labor. These certifications must be obtained well in advance and can take 5-7 days to process. As H-1B volume increases in March each year, LCA processing may become delayed. For this reason, we recommend preparing for H-1B filings well in advance of the April 3rd filing date.

If you are contemplating sponsorship of a foreign national for an H-1B visa this year, it is in your best interest to begin preparing immediately since the H-1B visa window filing opportunity may not be available for very long.

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