H1B Cap Timeline Expectations for FY17

Many inquiries regarding the projected timeline for fiscal year (FY) 2017 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 FY16, it is possible to make some informed projections as to an approximate timeline for similar aspects of the FY17 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 FY17, this means that the U.S. Citizenship and Immigration Services (USCIS) will treat cases filed from Friday, April 1, 2016 through Thursday, April 7, 2016 identically. If, as expected, 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, FY15, and FY16 cap years.

When We Learn if the Cap Has Been Reached

Over time, USCIS tracking and tallying of H1B cap filings has greatly improved. In FY14, FY15, and FY16 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 and FY16). 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. In FY16, it took six days for lottery completion.

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 both FY15 and FY16, these receipts began to arrive at the Murthy Law Firm only one day after completion of the lottery selection. Even though, in FY15 and FY16, the USCIS officially suspended premium processing timeframe guarantees for cap cases for most of April, some of the premium-processing cases, nonetheless, were acted upon promptly. In FY16, the Murthy Law Firm saw some premium-processing cases approved by April 27th.

In both FY15 and FY16, by April 23rd, the Murthy Law Firm had received eMail receipts for all cases filed under premium processing. 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 early May.

Cases Not Selected in Lottery

In FY16, the USCIS began returning cases that had not been selected in the lottery in early June 2015. The packets containing these filings started to arrive via regular mail a few days later, on June 12, 2015. Such cases are returned, in fact, with uncashed filing fee checks, to their respective petitioner or the petitioner’s representative of record.

Other Action

The final action on all cap cases extended well into September and October in FY16. Many cases were processed through to a decision within the standard H1B timeline in FY16. However, some cases were still awaiting decision in September and October 2015. 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 and FY16, cap case processing delays were due to RFE-related waiting times. The volume and detail of the FY15 and FY16 H1B RFEs made it difficult for many employers and their attorneys to respond quickly. Thus, many cases experienced extended RFE-related delays.

Conclusion

For those participating in the FY17 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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