H-1B Cap Reached for Fiscal Year 2017

May 17th, 2016

USCIS has announced that the cap has been reached for H-1B visa numbers for fiscal year 2017 and it has conducted a computer lottery to assign visa numbers to H-1B petitions filed the first week of April 2016.  For those beneficiaries subject to the H-1B cap who don’t receive a visa number, they must wait until next year to try again for a number.

The good news is that certain institutions are exempt from the H-1B cap.  These include nonprofit entities affiliated with institutions of higher education.  USCIS takes a very narrow view of affiliation, requiring joint control or ownership. However, it will give deference to prior determinations made since June 6, 2006, that a nonprofit entity is related to an affiliated institution of higher education, absent any significant changes in circumstances.

Therefore, such nonprofit entities can file H-1B petitions throughout the year for beneficiaries who would otherwise be subject to the H-1B cap.  These beneficiaries include those who have not been counted against the cap within the past six year (for example, J-1 physicians, F-1 students or H-4s changing to H-1B status).  They may start working in H-1B status as soon as the petition is approved.  Now that there is premium processing, that could be in as little as two weeks from filing the petition.

My office has extensive experience successfully filing such H-1B cap exempt cases.