H-1B Cap Filing Season Opens April 1, 2014

On Tuesday, April 1, 2014, U.S. Citizenship and Immigration Services will begin to accept H-1B cap petitions for the FY 2015 quota of 85,000. Demand for new H-1Bs is likely to be greater than last year, and the annual quota is expected to be reached quickly.

Employers should therefore plan to submit their H-1B cap petitions during the first five business days of April to maximize their chances of access to the limited number of new H-1Bs available every year. An H-1B petition approved under the FY 2015 cap will be effective no earlier than October 1, 2014, the first day of the federal fiscal year.

High Demand for Cap Numbers Is Expected

The annual H-1B quota is 65,000, with a cap exemption for 20,000 foreign nationals with advanced degrees from U.S. nonprofit educational institutions.

During the last cap filing season, USCIS received approximately 124,000 petitions, including 104,000 cases filed against the standard cap of 65,000. Cases submitted against the standard cap had a 62.5 percent chance of being chosen for processing. Some 39,000 petitions – or more than 31 percent of total cap filings – did not win a quota number.

Competition for H-1B numbers is expected to be even higher for FY 2015. Employers have been unable to file for new cap-subject H-1B employment since the FY 2014 quota was reached in early April of this year, meaning that there is a great deal of pent-up demand. The steadily improving economy and falling unemployment rates also contribute to higher demand for cap numbers.

Early Preparation Is Key

Fragomen strongly advises employers and foreign nationals to gather H-1B petition documentation well in advance. Some corporate documents, academic transcripts, degrees and other essential evidence can take time to assemble.

Employers should also seek labor condition applications (LCAs) from the Department of Labor as soon as possible. We expect a surge of LCA filings during the first quarter of 2014, which could cause processing slowdowns at the Labor Department. In addition, if Congress is unable to reach agreement on the federal budget, another government shutdown could occur in mid-January, which would suspend LCA processing during the height of the busy cap preparation period. Obtaining LCAs early will help your organization avoid delays and ensure readiness to file H-1B cap cases when the season opens. Early filing can also help your organization meet its non-cap H-1B needs, including location changes for current H-1B employees.

When to File

The earliest that FY 2015 H-1B cap filings can be made is the week of Tuesday, April 1, 2014 through Monday, April 7, 2014. Cases received by USCIS in that period are treated equally for cap counting purposes.

To safeguard against delivery delays, we recommend sending cases for arrival on April 1, the first possible filing day. Employers who wish to file on April 1 should plan to send their cap-subject cases to USCIS no later than Monday, March 31 for next-day delivery. Cap-subject cases must be received by USCIS no later than Monday, April 7 to be filed within the first five business days of the filing period.

Employers should not submit H-1B petitions for delivery on or before March 31, 2014. Agency regulations allow employers to file H-1B petitions up to six months in advance of the requested start date of October 1, but no earlier. FY 2015 H-1B cases that arrive on or before Monday, March 31, 2014, will be rejected.

The H-1B Quota and the Cap Lottery

If USCIS receives more than enough petitions to meet the standard and advanced-degree quotas during the first five business days of the filing season, it uses a computerized lottery to choose cases for processing. First, the agency runs a lottery of advanced-degree petitions to select enough cases to fill the cap exemption of 20,000. Once the advanced-degree lottery is completed, USCIS places the remaining cases into a second lottery to select enough petitions to meet the standard quota of 65,000.

Not every H-1B petition is subject to the annual quota and the lotteries. Extensions, amended petitions, changes of employer and requests for concurrent employment for existing H-1B workers are not subject to the cap and can be filed and approved at any time. A foreign national may also be exempt from the cap if he or she held H-1B status in the past, but for less than the maximum period of six years. An H-1B petition sponsored by an institution of higher education, a related or affiliated nonprofit entity, or a nonprofit or governmental research organization is exempt from the cap. However, a current H-1B worker may be subject to the cap if his or her previous H-1B was sponsored by a cap-exempt employer.

If your organization is planning to petition for H-1B employment in FY 2015, contact your designated Fragomen professional to discuss the process and your H-1B and LCA needs.

Employers should be aware that last-minute changes in USCIS and DOL procedures and regulatory requirements are always possible. Fragomen closely monitors H-1B policy and practice and will issue further Client Alerts as the FY 2015 cap filing season progresses.