We have been able to compare demand with prior H-1B filing seasons and we knew that this would be a busy and very short H-1B filing season. We expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas. This means that there is almost a guarantee that there will be a random lottery to allocate the available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap) among all filings received in the first five business days of April.
High H-1B Cap Demand Expected: Last Call for Starting H-1B Cases
The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st. It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days). As a result, any new H-1B cases should be initiated over the next 2-3 days, at the most, in order to have a decent chance of being accepted under the H-1B cap before it is reached, as anticipated, on April 7th.
What is the Ultimate Last Day to Start H-1B and Make It Under the Cap?
We are often asked when is the absolute last day when an H-1B case can be started and filed under the H-1B cap. The answer is that it varies, depending on many circumstances. If the employer can plan ahead and file an LCA early (or now), then a new (or confirmed) candidate’s H-1B petition can be started as late as April 1st and still be filed before April 7th. The LCA is the step of the process which takes the longest to prepare and certify – often 7 business days. New employers may also need to do a Federal Tax ID (FEIN) verification process (2-3 days) before an LCA is filed. As a result, while it may be possible to start a new H-1B case as late as March 24, 2014, there are many possible risk factors which would cause a late H-1B case to be delayed and miss the H-1B cap.
H-1B Applications Filed Over the First Five Business Days in April Will Be Subject to Random Lottery
Assuming the H-1B cap is reached by April 7th, as expected, all H-1B filings which are received over the first five business days in April will be subject to a random lottery to determine which of these H-1B applications would be counted and included under the cap. This means that, as of now, we expect all H-1B cap cases filed over the first business five days in April to be subject to the random lottery. Last year, in April 2013, there was also a random lottery to allocate the approximately 130,000 H-1B filings among the total of 85,000 H-1B visas.
H-1B Filings Not Picked by the Lottery or Filed After the Cap is Reached Will be Rejected and Returned
H-1B cases filed over the first five business days in April but not picked by the random lottery or H-1B cases filed after April 7th (again, assuming there are more filings over the first five days than there are available H-1B visas) are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.
Premium Processing Clock for New H-1B Cases to Start At a Later Date
In connection with the high level of H-1B filings, USCIS is likely to change the way they would process premium processing H-1B cases filed under the H-1B cap. Under current practice, the 15-day premium processing “clock” starts on the day a case is received by USCIS.
For cases filed under the H-1B cap, in order to facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS is likely to indicate that that for cap-subject H-1B petitions, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher, the premium processing “clock” will begin later in April, most likely around April 15th. This means that even for cases filed on April 1, 2014, the premium processing 15-day response window would not start until later in April. Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) should not be affected.
<Capitol Immigration Law Group Newsletter Vol. VII, No. 9>