Peter F. Asaad, Partner

Publications & Media

“H-1B Cap – Larger Number of Filings Expected in 2016; Employers Must be Strategic”

By Peter F. Asaad

A larger number of filings under the 2016 H-1B cap is expected on April 1st.  As shown in past years, the number of H-1B petitions filed on April 1st will correspond to the unemployment rate; the lower the unemployment rate in the U.S., the greater the number of new workers are being sought by employers – the unemployment rate has corresponded to the numbers of H-1B petitions being filed in past years indicating that employers will seek the best and brightest workers regardless of the candidate’s national origin to stay competitive and fill those open positions.  The total number of H-1B filings on April 1, 2015 was approximately 233,000, triple the 85,000 number of available H-1B visas under the cap.  This time last year, the unemployment rate in the U.S. was 5.7%.  This year, the current unemployment rate is 5.0% and continues to decrease, meaning employers are hiring with vigor.  We see this first hand as well.

Moreover, foreign student enrollment and graduation has increased.  Those graduated foreign students are on OPT and are in the pipeline at higher numbers.  In other words, there are more OPT workers employed by U.S. companies than before.   Indeed, it is unlawful for an employer to discriminate in the recruitment of a worker based on their national origin or future employment authorization expiration date. Consequently, where you have a pool of applicants consisting of more foreign nationals, particularly seen in the STEM fields, you have employers who are hiring those foreign nationals irrespective of their national origin or future employment authorization.  Those foreign students are on OPT as a basis for their work authorization.  However, if the employer wants to continue to benefit from the worker’s employment, the employer needs to file an H-1B petition to change his or her status.  The increase in the number of OPT workers will surely be another basis to conclude that there will be an increase in number of H-1B petitions filed in 2016 on April 1st and that number will be even larger increase than last year.

Finally, with two-thirds of H-1B applicants last year who were rejected under the H-1B lottery due to the cap, they too are in the pipleline for an H-1B petition come this April 1st – a backlog has developed.

It is expected that the number of H-1B petitions filed on April 1, 2016 will be perhaps four times the number of H-1B petitions available under the cap.  Many employers will have the unfortunate situation of losing F-1 students currently working for them on OPT and will find that they cannot hire a candidate they have deemed to be the right fit and best and brightest for their company.  To avoid this scenario, timely filing on April 1st and no later than April 1st is absolutely critical.  In fact, we recommend contacting us to begin now – without further delay.

In just over two months, on April 1, 2016, U.S. Citizenship & Immigration Services (USCIS) will begin (and immediately quickly close the window) for accepting new H-1B petitions under the cap.  Limited H-1B availability known as the “cap” means that no more than 85,000 new H-1B visa numbers, which include 20,000 Master’s exempt numbers, are available for the fiscal year on April 1, 2016, when the window to file briefly opens.

Delay in obtaining Credential Evaluations or a Certified Labor Condition Application (LCA) may jeopardize timely filing of a new H-1B petition which has the critical filing date of April 1, 2016.  Employers who miss filing H-1B petitions in 2016 will not have a chance to file new H-1B petitions until April 2017, and will not be able to bring in new employees or change status to the H-1B until October 1, 2017.  Accordingly, please contact us to begin now to prepare new H-1B petitions to file on April 1, 2016.

Employers Must be Strategic and File for All F-1 Students, TN Professionals, and L-1 Professionals

Because more petitions are expected than visa numbers are available, USCIS will implement a “lottery” to award the visa numbers. Petitions that do not receive an H-1B visa number this year may be filed again next year. However, by filing in the earliest year possible, employers can increase their odds of getting H-1B visa numbers for existing employees.

To be strategic and forward looking, with the larger number of H-1B petitions expected this year and next year, and with the decreased chance that comes with that dynamic of being selected under the H-1B lottery, employers should consider H-1B petitions for their employees even if their employees have several months or even multiple years remaining of their current employment eligibility.

Employers should evaluate their current workforce and consider proceeding now with H-1B petitions for qualifying F-1 students and TN and L-1 professionals who will be employed long-term with the company.

Avoiding Potential Timing Issues with Credential Evaluations and LCA Certification – Reasons Why Employers Should Begin New H-1B Petition Preparation Immediately Without Further Delay

The cap is expected to be reached in the first day that new petitions are accepted, and a “lottery” (random selection process) will be used by USCIS to select petitions for H-1B adjudication. Because of the volume of filings anticipated, employers should initiate all new H-1B petitions now for filing on March 31st and receipt by U.S. USCIS on April 1st.

Beneficiaries of successful FY 2017 H-1B petitions will be eligible to start working or change their status on October 1, 2016. However, employers who miss filing H-1B petitions in 2016 will not have a chance to file new H-1Bs until April 2017, and will not be able to bring in new employees under the H-1B program until October 1, 2017.  To avoid this, employers must begin to plan the April 2016 filing now, and ensure that their H-1B petitions will be ready to file for April 1st.

Moreover, in order to qualify for an H-1B, foreign nationals who have education from outside the U.S. must demonstrate that their education is “equivalent” to a four-year U.S. bachelor’s degree.  In such cases, a Foreign Credential Evaluation must be obtained from a credential evaluator that can evaluate foreign degrees and their equivalency for the purposes of the H-1B program.  However, with the large number of H1B 2017 applications requiring education evaluation for H-1B, credential evaluation services usually become very busy during this time of the year. Therefore, it is very important to obtain this Credential Evaluation as early as possible to avoid last minute delays.

Additionally, as part of the filing procedure, every H-1B petition filed must be accompanied by a certified Labor Condition Application (LCA).  An H-1B petition that lacks a certified LCA will be rejected or ultimately denied.  To satisfy this LCA requirement, the employer must prepare an LCA and submit it to the Department of Labor (DOL), which must then certify it.  LCA’s currently take no less than 7 days to process. And as we get closer to the H1B filing date, the number of LCA’s filed with the DOL is only going to increase, leading to possible delays in LCA approvals.  Also, because LCA’s are filed using an electronic system, delays caused by system breakdowns are unavoidable. Therefore, a lack of advance planning will result in LCA’s filed too late to make it for the April 1st  deadline.