H-1B Cap Reached for Fiscal Year 2015

U.S. Citizenship and Immigration Services (USCIS) announced on Monday, April 7, 2014 that it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year 2015 during the first week of the filing period, which ran from April 1, 2014 to April 7, 2014.  USCIS also confirmed that it received more than the limit of 20,000 H-1B petitions under the advanced degree exemption.  As the H-1B cap is now officially oversubscribed, USCIS will no longer accept H-1B cap petitions for fiscal year 2015.

The agency will next complete initial intake for all filings received during the April 1-7, 2014 filing period.  Once intake is complete, USCIS will run a computer-generated selection process, or lottery, first to identify the 20,000 cases that will proceed under the U.S. advanced degree exemption.  Those advanced degree petitions that are not selected in the lottery will become part of the random selection process to identify the remaining 65,000 petitions for the general filing category.  Once the lottery is complete, USCIS will reject any petitions not selected, and return all filings and filing fees to the petitioners or their attorneys of record.

Although a date for the lottery has not yet been announced, USCIS is likely to conduct its selection process in the next week to week and a half.  Once the selection process is complete, companies should expect to start receiving electronic receipt notices for H-1B petitions filed under the premium processing program.  Receipt notices for non-premium processing cases could be received anywhere between one to two weeks following completion of the selection process.

Companies are now unable to file any new H-1B petitions until April 1, 2015 for fiscal year 2016.  USCIS will continue to accept cap-exempt H-1B petitions, such as H-1B extensions or H-1B change of employer petitions.  Individuals who already hold H-1B status are not counted as part of the statutory cap, and this notice does not apply to them.

Once USCIS returns any filings that were rejected and not selected as part of the lottery, Companies should consider alternative means for securing work authorization for any employees hoping to change status to H-1B in fiscal year 2015.  Alternatives include:

  • Secure a STEM (Science Technology Engineering Mathematics) OPT 17-month extension of work authorization.  The Department of Homeland Security (DHS) maintains the STEM-Designated Degree Program List, which can be accessed here. Only students whose degree fields are listed will qualify for this 17-month extension. The company must be enrolled in E-Verify for the student to obtain this benefit.
  • Obtain extensions of status for anyone already holding work authorization under a different visa category (i.e., TN or L-1 status).
  • Secure an alternative work visa. Companies should assess this possibility with immigration counsel.
  • Stop working for the company once a F-1 student’s OPT EAD expires and: (a) secure alternative U.S. immigration status (such as another F-1 status or B-2 status); or (b) leave the country before the end of the 60-day F-1 grace period.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.