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“What’s Next Regarding the FY2016 H-1B Cap”

By Peter F. Asaad

As predicted, and like the preceding two years, USCIS has announced that the FY2016 H-1B cap has been reached within the first 5 days of the fiscal year.  Prior to April 1, 2015, USCIS expected to receive perhaps 250,000 applications.  In the coming days, we shall learn the exact number received.

Below are additional insights from past years to help understand what’s next, including: premium processing timelines from years past, cap numbers from years past, and what to expect next and how to know if your H-1B Petition was selected for processing under the cap.

FY2016 General H-1B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated 65,000 H-1B cap for fiscal year (FY) 2016.

FY2016 H-1B “Master’s Cap” Reached

USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.

The “Lottery” Process

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. 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 limit. The agency will reject and return filing fees for all unselected capsubject 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 2016 H-1B cap.

General Cap versus “Master’s Cap”

USCIS conducts the selection process, or “lottery,” for advanced degree exemption petitions first — limited to 20,000.   Then, all advanced degree petitions that were not selected become part of the random selection process for the 65,000 limit.

USCIS Continues to Accept and Process Certain H-1B Petitions

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. We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2016 Cap Season Web page.

FY 2016 General Timeline and What to Expect Next

Applicants who are not selected under the cap may not receive their rejected petition until May or June.  Under premium processing, notice about being selected under the cap might be as early as end of April/early May.  For those who had filed under Premium Processing, if they did not receive a receipt notice by, or soon after, the announced premium processing commencement date, they might correctly conclude that they were not selected despite not yet receiving any affirmative rejection.  However, nothing is absolute until a notice or the rejected petition is received.

Premium Processing Timeline Based on Previous Years

In 2014 (FY2015), USCIS began Premium Processing adjudication for the H-1B petitions selected through the cap on April 28th.

In 2013 (FY2014), USCIS began Premium Processing adjudication for H-1B petitions selected through the cap on April 15th.

From the date Premium Processing begins (announced at the discretion of USCIS), adjudications of Premium Processing cases are completed within the required 15 days (excluding time with regard to issuance of a Request for Evidence “RFE”).

Premium Processing does not improve ones chances on being selected under the cap.

Number of Petitions Received in Previous Years

On April 7, 2014, United States Citizenship and Immigration Services (USCIS) announced it received 172,500 H-1B petitions including petitions filed for the advanced degree exemption thus reaching the cap. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery.

In comparison, the year before that, USCIS received 124,000 H-1B petitions, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process.  Both years, the cap was reached on “the first day” which includes the first 5 business days from April 1st.  2013 was the first year the cap was reach on “the first day” since 2008.

The increase in the number of H-1B petitions received in 2014 on the “first day” in comparison to 2013 on “the first day” is 48,500 which is a 39% increase.

Prior to April 1, 2015, USCIS expected to receive perhaps 250,000 applications.  In the coming days, we shall learn the exact number received.

How Applicants and Employers Will Know if they Have Been Selected Under the Cap

Applicants and employers will only know if their petitions were selected under the cap when they receive a receipt notice notifying them that the H-1B petition is being adjudicated or, for petitions not randomly selected, they will receive a rejection notice for the petition with the filing fees returned.

If a government filing fee is processed by USCIS, this can give an early indication that the case was selected for processing under the cap.

Nothing is absolute until a receipt notice or the rejected petition is received.