H-1B Visa Lottery Anticipated for 2016, Employers Urged to Act Now Before April 1st

Beginning April 1, 2016, employers will be able to submit petitions with the U.S. Citizenship and Immigration Services (USCIS) for H-1B visas on behalf of highly-skilled foreign workers in specialty occupations. These cap-subject visas will become available later in the year on October 1.

This year it will be very important for you to prepare your petitions as early as possible, because it is anticipated that there will be very strong demand for H-1B visas in2016. In the past three years, the H-1B visa cap was reached immediately within five business days of the initial April 1 start date. When this occurs, a visa lottery takes place. There is expected to be continued strong demand, as well as pent up demand from petitioners who could not obtain an H-1B visa last year.

What is the H-1B Visa Cap?

Current U.S. immigration law limits the number of H-1B nonimmigrant work visas that are available each year to 65,000. There are an additional 20,000 visas available if you are a holder of a master’s degree or higher from a U.S. university. These limits have unfortunately not been increased from their original 1991 levels. In recent years, demand has far outpaced supply, as the H-1B visa is the most popular visa category for employers seeking to obtain work authorization for foreign nationals in a wide range of occupations. These include the areas of: information technology (IT), healthcare, the sciences, teaching, engineering, and many other kinds of professions.

A foreign national must have at least a bachelor’s degree, its equivalent, or higher in the specific specialty occupation of the job offered to qualify for an H-1B visa.

Not all H-1B employers are subject to the visa cap. If the employer is an institution of higher education, a related or affiliated nonprofit entity, or a government research organization, the visa cap may not apply. Other cap exemptions include H-1B extensions and petitions to change employers for existing H-1B beneficiaries.

What is the H-1B Visa Lottery?

During the H-1B process last year, the H-1B visa cap was met on April 7, 2015. During this time period, over 233,000 petitions were accepted by USCIS. This means that the entire amount of 65,000 + 20,000 visas were petitioned for within a few short days, and that a visa lottery needed to take place to determine which of the over 233,000 petitioners would receive one of the 85,000 visas.

USCIS conducted a randomized, computer-selected process on April 13, 2015. First, a random lottery was conducted for the 20,000 visas available to master’s degree holders. Those not selected in this lottery got a second chance in the main lottery for the 65,000 visas available to bachelor’s degree holders. If an H-1B visa was not selected under either lottery, then the petition was denied and the filing fees returned. If the H-1B visa petition was one of the lucky ones selected in the lottery, then USCIS sent out a notice by U.S. post mail several weeks after the lottery; or, if the visa was filed with premium processing, USCIS notified successful petitioners by email.

Should I Begin Preparing My H-1B Petition Now in Advance of April 1?

Yes, start now. Businesses who wish to hire H-1B workers must be ready for the H-1B filing start date. While USCIS will accept all H-1B petitions filed properly within the first five business days before conducting the random lottery, it is important to gather information and prepare all the necessary documentation now so that no unanticipated delays occur.

It is essential that you obtain the approval and certification of your Labor Condition Application (LCA) before the April 1 filing date. You can begin now to work on all of the necessary paperwork required for the LCA by the Department of Labor (DOL). The processing time at DOL for LCAs is around seven business days. April 7 is the last day that USCIS will accept your H-1B petition, but you can start preparing early by: finalizing lists of H-1B candidates, preparing and submitting LCAs to the DOL, gathering supporting documentation, finalizing H-1B petition forms, and filing your H-1B petition on March 31 by overnight mail.

With strong demand for H-1B visas expected to lead to a randomized lottery this year, it is important to be ready for H-1B season and to file your petition as soon as possible, while still preparing a strong petition that USCIS is likely to accept without any requests for additional information.

If you have questions about immigration and/or you need help in an immigration process, please contact The Law Firm of Shihab & Associates, Co., LPA for a consultation. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, asylum cases, immigrant visas, non-immigrant visas, employment visas and H-1B visas, investor-visas, PERM applications and many more.

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