United States: FY 2017 H-1B Cap Season Begins: What Employers and Foreign Nationals Can Expect

USCIS is expected to receive a very large number of H-1B cap cases between April 1 and April 7, the opening days of the cap filing season. The agency will use a computerized lottery to select the petitions that will be processed to completion. Because of the operational challenges of extremely high filing volume, employers and foreign nationals should expect to wait several weeks to learn whether their cap petitions were selected for processing.

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USCIS today begins to accept H-1B cap petitions for employment in FY 2017. With a very large number of cap filings expected this year, the FY 2017 cap of 85,000 is likely to be exhausted quickly.

The first five business days of the cap filing season - April 1 through April 7 - are considered a single filing period. If, as anticipated, USCIS receives more than enough cap petitions to meet the quota during this period, it will run computerized lotteries to choose the cases that will be processed to completion.

Because of the operational challenges of extremely high volume, it will take USCIS some time to perform initial intake, run the selection lotteries, and issue receipts. Employers and foreign nationals should expect to wait up to several weeks to learn whether their cap petitions were selected in the lotteries.

What Are the Odds of Selection in This Year's Cap?

Filing volume for FY 2017 is likely to be near last year's record of 233,000 cap petitions. During the FY 2016 cap season, about 30% percent of the cases filed against the standard cap of 65,000 and about 40% of the cases filed against the cap exemption of 20,000 for holders of U.S. advanced degrees were selected for processing.

When Will USCIS Announce That the Cap Has Been Reached?

We expect USCIS to announce that the cap has been reached on Thursday, April 7.

Once the cap has been reached, USCIS will not accept any further cap-subject petitions until April 3, 2017, but employers can continue to file H-1B cases that are not subject to the cap. These include extensions, amended petitions, changes of employer, and concurrent filings for existing H-1B workers.

Petitions sponsored by institutions of higher education and their related or affiliated nonprofit entities, government research institutions and nonprofit research institutions are exempt from the cap. However, a current H-1B employee may be subject to the cap if his or her previous H-1B was sponsored by a cap-exempt employer.

Case Intake and Selection Lotteries

In the weeks after April 7, USCIS Service Centers will open each H-1B cap submission, perform initial data entry, run lotteries to select the cases that will be processed to completion and issue filing receipts. It could take USCIS up to five weeks for the agency to complete this stage of processing.

The first lottery will select enough cases to meet the cap exemption of 20,000 for holders of U.S. advanced degrees. The second lottery will choose from all remaining cases, including those not selected in the advanced-degree lottery, to draw enough filings to fill the standard quota of 65,000. Cases not selected in either lottery will be rejected and returned with their filing fees.

What to Expect for Premium Processed Cases

USCIS will delay the start of the 15-day premium processing clock until no later than May 16. In past years, USCIS has typically begun premium adjudications by or before the projected start date.

Employers whose premium cases were selected in the lottery should get email filing receipts by May 16, though receipting could begin earlier. Hard copy receipts should follow soon after.

USCIS adjudicators should begin working on premium processed cases by May 16. If an adjudicator requires additional facts or documentation in a case, he or she will issue a request for evidence (RFE) within a few days after the start of processing. If your organization receives an RFE, your Fragomen team may ask you and the petition beneficiary to provide additional information to prepare a response. Working promptly with your Fragomen team will help ensure that a decision in your case is not delayed.

USCIS should complete initial adjudication of premium cases by May 31. By this date, employers should receive an approval, RFE or denial in their premium cases. If an RFE is issued, additional time will be required for a determination.

What to Expect for Non-Premium Cases

Employers whose regular processed cases were selected in the lottery should begin to get filing receipts by the end of May, if not earlier. Receipting could continue for several days or weeks after it begins.

USCIS is expected to begin working on regular processed cases by early June, and typically aims to finish initial adjudication by mid- to late August. RFEs may be issued at any time during this period. As above, if your organization receives an RFE, you should work with your Fragomen team to quickly assemble any additional facts or documents necessary for a response. The sooner your response is submitted, the greater the likelihood that your case will be decided in time for an October 1 H-1B employment start date. However, since the case has already been successful in the lottery, it will be processed under the cap as long as a timely RFE response is made.

Impact of H-1B Cap Processing on Other Case Types

During the busy cap season, USCIS devotes significant resources to the processing of H-1B cap petitions. This may prolong the processing of other case types, including extensions of stay.

Though USCIS makes an effort not to unduly delay the processing of non-cap cases, employers and foreign nationals should plan for the possibility that their extensions may take longer than usual. As a reminder, H-1B, H-1B1, L-1, E-1/E-2, E-3, O, P, TN and certain other nonimmigrants are given an automatic 240-day extension of work authorization beyond the expiration of their current period of stay if an extension is filed on time. USCIS aims to complete extension processing within this timeframe, but if it does not, the foreign national's employment authorization could be affected.

Fragomen will provide regular updates as FY 2017 H-1B cap processing continues. If you have any questions, please contact the immigration professional with whom you work at Fragomen Worldwide. This alert is for informational purposes only.

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Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates, (collectively known as “Fragomen Worldwide”) is the world’s largest firm dedicated to corporate immigration, and is recognized as the leading global immigration services provider.

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