Time to Plan for the FY17 H1B Cap Season

On Friday, April 1, 2016, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting H1B cap-subject case filings for fiscal year 2017 (FY17). April 1st may seem a long time from today, but employers and potential H1B workers would be wise to begin the process of preparing their petitions as early as possible. This advance prep work is beneficial both in identifying potential problems while enough time remains to resolve them, and in revealing other possible benefits that may be pursued. To that end, the Murthy Law Firm is already accepting H1B cap-subject cases for FY17.

Background on H1B Cap Season

There are 65,000 regular H1B cap numbers plus 20,000 advanced-degree cap exemptions (master’s cap) available per year. Each year, H1B cap-subject cases can be filed beginning on the first business day in April, which is April 1, 2016 for FY17. Under USCIS regulations, the minimum filing period for H1B cap cases is five business days. If there are still cap numbers available at the end of the first five days, the cap remains open until filled. If there are enough cases to meet or exceed the cap in the first five days, the cap closes. In that event, the USCIS stops accepting new H1B cap filings, and a lottery is conducted from the cases filed during the first five business days to randomly select the cases that the USCIS will adjudicate. The remaining cases are then returned without being processed. A more complete explanation regarding how the H1B process functions during cap season is available in the MurthyDotCom InfoArticle, ABCs of H1Bs: Getting Back to the Basics of the H1B Visa.

Short Filing Season Expected, Lottery Likely

In FY15, the USCIS received over 170,000 H1B filings during the first five business days of April. In FY16, the case volume received in the first five days increased to over 233,000 filings. Thus, a lottery was needed to select from the cases filed during the minimum required filing period. It appears highly probably that a lottery will be necessary in FY17. The number of cap-subject filings has been steadily increasing each year, and this trend is widely expected to continue for the FY17 cap season.

Prep Time Can Be Greatly Beneficial

The Murthy Law Firm begins to accept cap-subject H1B cases months prior to April 1st each year. While these petitions cannot be filed with the USCIS until then, initiating the process early provides a number of potential advantages. First of all, the lawyer working on the case will have time to fully identify and consider all crucial documents needed from either the employer and/or foreign national candidate. This will allow time to obtain documents that may take longer to obtain. Advance planning also gives the parties more time to discuss the case, delve deeper into any questions, and, where appropriate,  develop long-term immigration plans. This effort may reveal benefits and strategies to the employer and the worker. And, of course, having the prepared case ready to file well in advance serves to avoid last-minute frenzied activity and stress.

Advance Planning for Employers

Employers should begin considering which of their employees may need H1B cap-subject filings. Most commonly, these are recent college graduates who are working on F-1 optional practical training (OPT). For multinational companies, the list often includes L1B employees who are nearing the five-year limit on their L1B stays in the United States. Other typical examples include L-2 employees working on employment authorization documents (EADs), who may wish to hold a status that is not dependent upon their spouses. Employers should anticipate their workforce needs for FY17, and consider whether the filing of any additional cap-subject H1B petitions, and now H-4 EADs, are warranted.

Advance Planning for Foreign Nationals

While many employers proactively identify their needs for H1B filings, foreign national workers still should approach their employers, generally through the Human Resources Department or other appropriate channels. This is often the best course of action to initiate discussion and avoid last-minute problems. This can be particularly important if one’s employer is unfamiliar with H1B filings and may need to seek appropriate legal guidance in order to make an informed decision.

Turn to Murthy for H1B Cap Tracking and Information

Each cap season, MurthyDotCom provides readers with all the latest cap-related news and guidance. WebSite readers who are interested in remaining up-to-date on developments regarding the H1B cap, in addition to other immigration-related issues, are encouraged to subscribe to the MurthyBulletin.


Being well prepared for the H1B cap season, not to mention being represented by an experienced legal team, can mean the difference between an H1B approval, and having to try again next year. It should be noted that once this cap is closed, the next H1B cap will not open until April 1, 2017, with an H1B start date of October 1, 2017. Readers with H1B questions, or who need representation in H1B matters, are invited to contact the Murthy Law Firm.


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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.