Time to Plan for the H-1B Cap

14. Jan. 2016

Filing of H-1B cases subject to the annual cap will begin in less than 3 months, on April 1, 2016.  An H-1B petition for a beneficiary who has not been approved for H-1B before is always subject to the cap (with rare exceptions).

In this strong job market, it is certain that all cap-subject H-1Bs for the entire year will be fully-subscribed by the fifth business days of April, as it was in each of the last 3 years.  If so, all cases received during the first 5 business days of April will undergo a random selection process to determine which cases will be processed and which will be returned.  This is often referred to as the H-1B “lottery.”

What should I do first?

Send an email to your ILG attorney or paralegal listing the job title(s) and worksite(s) your company would like to file for.  Include the approximate number of petitions you plan to file for each position and worksite, and the wage range for each position.  With this information, ILG will prepare the Labor Condition Applications (LCA) in advance.  The LCA is a required document for every H-1B and must be prepared in advance of filing an H-1B.

F-1 Status Employees

Because ILG’s service is generally not needed when your company hires F-1 students with valid EADs, we will not know you have such employees unless you’ve explicitly informed us.  Therefore, if your company is employing individuals in F-1 status, send a list of such employees to your ILG attorney or paralegal.  We need their names and email IDs to initiate their H-1B case. 

Even for F-1 employee who may be able to obtain OPT work authorization through October 2017, we highly recommend petitioning for H-1B change of status this April in order to have multiple tries in the “H-1B lottery” (i.e., in April 2016 & April 2017).  Demand for H-1B will exceed availability not only this year but also in the foreseeable future.