USCIS Reaches FY 2017 H-1B Cap

Lal Varghese, Attorney at Law, Dallas

Beginning April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2017 cap. USCIS fiscal year begins on Oct. 1st and end on Sep. 30th of every year. The new petitions for H-1B quota for next fiscal year will be accepted only from April 1st ie; within 6 months of the start date of the job which is Oct. 1st, which is the first day of the fiscal year. In order to file a petition with the USCIS both prevailing wage and labor condition application must be approved by the Dept. of labor. It requires lot of time attorney time, legal assistant time once the employer and employee provided documents to a law firm. The best time to contact a law firm for filing new H-1B cases will be in the month of January of February of each so that there will be enough time both for the employer and employee to collect all required documents and also for the law firm to prepare and file a good case with the USCIS which is approvable. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.  Please remember that this program is only for highly specialized persons to fill the specialty occupations, which requires a minimum of 4 years of U. S bachelor’s degree or its foreign equivalent.

The congressionally mandated cap on H-1B visas for FY 2017 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap. USCIS has  received more than 65,000 petitions during the first five business days of this year’s program, but they are not disclosing how many petitions they received this year. Last year they received about 237,000 petitions for 65,000 cap subject petitions for 2016 quota. The agency had monitored the number of petitions received and notified the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a computer-generated lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed.

H-1B petitioners may still continue to request premium processing together with their H-1B petition. However, please note that USCIS has temporarily adjusted its current premium processing practice based on historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the filing season. In order to prioritize data entry for cap-subject H-1B petitions, USCIS will begin premium processing for H-1B cap-subject petitions requesting premium processing no later than May 16, 2016.

H-1B petitioners are reminded that when the temporary employment or training will be in different locations, the state where your company or organization’s primary office is located will determine where you should send your Form I-129 package, regardless of where in the United States the various worksites are located. Please ensure that when temporary employment or training will be in different locations, the address on page 1, part 1 of Form I-129 is for your organization’s primary office. Please note that when listing a “home office” as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.

H-1B petitioners must follow all statutory and regulatory requirements as they prepare petitions in order to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including an optional checklist, Form M-735, Optional Checklist for Form I-129 H-1B Filings, on how to complete and submit an FY 2017 H-1B petition. The optional checklist for FY 2017 will be available within the next week. Cases will be considered accepted on the date USCIS receives a properly filed petition with the appropriate fees.

On April 07, 2016, U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. USCIS will use a computer-generated process, also known as the lottery, to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption. This 20,000 U. S master’s degree petitions are not counted for the 65,000 regular H-1B quota.

USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general cap. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings. Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the random selection process.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to: •Extend the amount of time a current H-1B worker may remain in the United States; •Change the terms of employment for current H-1B workers; •Allow current H-1B workers to change employers; and •Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

Disclaimer:  Lal Varghese, Attorney at Law, with more than 36 (about 21 years in U. S. Immigration Laws) years of experience as an Attorney, mainly practices in U. S. immigration law and is located in Dallas, Texas. He does not claim authorship for above referenced information since it is obtained from several sources including USCIS, DOS web sites, AILA and other Internet based legal sources, and published for the benefit of the general public. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various legal sources. For individual cases and specific questions you are advised to consult any attorney of your choice or contact your State Bar Organizations or local Bar Associations or American Immigration Lawyers’ Association (AILA) for finding an attorney or for any legal help. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com or www.facebook.com/groups/usattorney for information about U. S. immigration law related matters. Lal Varghese, Attorney at Law can be reached at (972) 788-0777 or at his e-mail: attylal@aol.com if you have any questions.