H-1B cap filing opens; petitions expected to exceed caps again

The filing period for cap-subject H-1B petitions opened Monday, and the number of petitions is expected to exceed the number of H-1B visas available within five business days.

Congress set the annual cap on H-1B visas at 65,000, plus an additional 20,000 visas for people with a master’s degree or higher from a U.S. university. For those filing for the first time or in need of a refresher, here is how the process is likely to unfold over the next few weeks:

• U.S. Citizenship and Immigration Services will monitor the number of petitions it receives and make a public announcement when the cap is reached. The filing period will remain open for at least five business days, even if the cap is reached before then.
• If the cap is reached within the first five business days, USCIS will conduct a two-step, computer-generated lottery. First, petitions for those with a U.S. master’s degree or higher will be placed in a pool from which 20,000 petitions will be selected. Those that are not selected in that phase will be placed in a second draw with all other petitions to select the remaining 65,000. Because the agency must count and confirm the number of petitions it receives, the lottery usually takes place a few days after USCIS stops accepting petitions.
• Petitions selected in the lottery will be accepted for processing. Petitions that are not selected or that are filed after the cap has closed will be rejected.

In years past, petitions filed with a request for premium processing have been eligible for expedited 15-day processing. However, USCIS announced earlier this month that it will suspend premium processing of all H-1B petitions filed on and after the first day of the H-1B cap filing season.

Employers filing H-1B petitions may be eligible for expedited processing, but they must meet one of the criteria, such as severe financial loss to the company or individual, emergency situations, a compelling interest to USCIS, national interest, humanitarian reasons or USCIS error. Expedited requests are decided on a case-by-case basis at the discretion of USCIS. Historically, very few expedited requests are granted, particularly when the request is driven by business considerations.

BAL Analysis: The H-1B cap has been reached in the first week of filing in each of the past four years, and there is every indication that the same will happen this year. USCIS received more than 236,000 H-1B cap-subject petitions during last year’s filing period, up from about 233,000 in 2015 and 172,500 in 2014. Because of the suspension of premium processing, employers should expect delays in H-1B cap receipt notices this year. BAL will continue to report on the status of the cap and the lottery next week and throughout the spring.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
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