H1B Cap Timeline Expectations for FY1612 Mar 2015
Many inquiries regarding the projected timeline for fiscal year (FY) 2016 H1B cap case milestones continue to reach the Murthy Law Firm. While most applicants are aware that they can begin filing H1B cap-subject cases on the first business day in April each year, there is less clarity about the timeframes for other aspects of the H1B cap season. Based on the schedule of events in FY15, it is possible to make some informed projections as to an approximate timeline for similar aspects of the FY16 cap season.
Cases Filed the First Five Business Days of April Treated Identically
Cap-subject H1B cases can be filed, at the earliest, during the first five business days in April. For FY16, this means that the U.S. Citizenship and Immigration Services (USCIS) will treat cases filed from April 1, 2015 through April 7, 2015 identically. If the number of cases filed through April 7th exceeds the allowable annual H1B limit, or cap, then the USCIS will stop accepting cap-subject cases. A random lottery then will be held to determine which cases will be accepted for continued processing. For purposes of the lottery, cases filed requesting premium processing have no better or worse chance of being selected than cases filed requesting regular processing.
If there are enough cases to exceed both the regular H1B cap and the advanced-degree (commonly, “master’s”) cap during the first five days of filing, the USCIS will conduct two lotteries. The first lottery will consist of cases filed against the master’s cap. Cases not selected in that lottery will be shifted into the general pool for the regular cap lottery. This two-stage lottery was necessary during the FY14 and FY15 cap years.
When We Learn if the Cap Has Been Reached
Over time, USCIS tracking and tallying of H1B cap filings has greatly improved. Regular updates are provided, and, this information is reported and explained on MurthyDotCom in a timely fashion. In FY14 and FY15, the USCIS confirmed the need for a lottery on the last day in the initial filing period (i.e. April 5th in FY14 and April 7th in FY15). In both FY14 and FY15, lotteries were conducted for the master’s cap and regular cap cases within two to three days of the filing period closure.
When and How We Learn if a Case Has Been Accepted
Waiting to find out whether or not a case is accepted into the lottery can be an uncertain and very tense period. The earliest notifications in FY14 and FY15 were premium-processing eMail receipts. In FY15, these receipts began to arrive at the Murthy Law Firm on April 11th, only one day after completion of the lottery selection. Even though, in FY15, the USCIS officially suspended premium processing timeframe guarantees for cap cases between April 1st and April 28th, some of the premium-processing cases, nonetheless, were acted upon promptly. The Murthy Law Firm saw some premium-processing cases approved within days of receipt issuance, for the last two fiscal years.
By approximately April 23, 2014, the Murthy Law Firm had received eMail receipts for all cases filed under premium processing, as well as additional approval notices. Also by that time, hard copy receipt notices for H1B cases filed under standard, non-premium processing had begun to come in gradually. These receipts continued to arrive throughout April and into May.
This year, the USCIS expects to begin adjudicating premium processing cases that are selected in the lottery by May 11, 2015.
Cases Not Selected in Lottery
In FY15, the USCIS began returning cases that had not been selected in the lottery at the end of May 2014. The packets containing these filings started to arrive via regular mail a few days later, in early June 2014. Such cases are returned, in fact, with uncashed filing fee checks, to their respective petitioner or the petitioner’s representative of record.
The final action on all cap cases extended well into August and September in FY15. Many cases were processed through to a decision within the standard H1B timeline in 2015. By early June, the Murthy Law Firm had received many approvals of cases filed under premium processing, as well as a substantial number of approvals of cases filed under regular processing. However, some cases were still awaiting decision in September 2014. The USCIS can and does issue requests for evidence (RFEs) on many H1B cap cases. Petitioning employers and sponsored employees must be prepared for this possibility. In FY15, the USCIS announced that they were having difficulty meeting their internal H1B cap processing goal of August. These delays were caused due to RFE-related waiting times. The volume and detail of the FY15 H1B RFEs made it difficult for many employers and their attorneys to respond quickly. Thus, many cases experienced extended RFE-related delays.
For those participating in the FY16 H1B cap season, it is important to keep up-to-date with timely cap developments, so that both employee and employer can plan how to proceed. Those who are interested in learning the latest developments throughout this cap season, as well as related immigration law information, are encouraged to subscribe to the MurthyBulletin and check MurthyDotCom for regular updates.
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