H-1B visas are popular with employers because of their broad applicability, but the US Citizenship and Immigration Services (USCIS) approves no more than 85,000 new H-1Bs for each fiscal year (October 1st to September 30th). The 85,000 available new H-1B visas are allocated as follows:

The limited availability of H-1B visas is known as the H-1B cap. For more information on the H-1B cap and its impact on employers, see Practice Note, The H-1B Nonimmigrant Visa Classification: The H-1B Cap.

Employers may begin requesting new H-1B visas six months before the fiscal year starts (April 1st), and may continue to file cap-subject H-1B petitions until the annual cap is reached. In many years, however, including the past several fiscal years, the H-1B cap is met before the fiscal year begins (see Legal Updates, USCIS Reaches H-1B Statutory Cap for FY2016, USCIS Reaches H-1B Statutory Cap for FY2015, USCIS Reaches H-1B Statutory Cap for FY 2014 and USCIS Reaches Statutory Cap for Fiscal Year 2013). Therefore, to maximize their access to the supply of new H-1Bs, employers with foreign workers requiring H-1B status to begin or continue working for the employers should file the H-1B petitions as early as possible. Petitions for new H-1B visas in FY2017 may be filed (received by USCIS) between Friday, April 1, 2016 and Thursday, April 7, 2016. If the USCIS receives enough qualifying H-1B petitions to satisfy the H-1B cap during the filing period, it will:

Before filing the H-1B petition, employers must obtain a certified Labor Condition Application (LCA) from the DOL. Normally, it takes two or more weeks to obtain the certified LCA. However, on January 27, 2016, the DOL announced that technical glitches in the electronic system (iCERT) are delaying LCA processing. Therefore, employers planning to file cap-subject H-1B petitions beginning on April 1st should submit the prerequisite LCA applications as soon as possible. For more information on LCA requirements, see Practice Note, The H-1B Nonimmigrant Visa Classification: Labor Condition Application.

If approved, the H-1B status allows the foreign worker to be employed by the petitioning employer in the job described in the H-1B petition no earlier than October 1, 2016 (as requested in the petition) for up to three years, with the possibility for further extensions or amendments to the H-1B status (see Practice Note, The H-1B Nonimmigrant Visa Classification: Validity Period of H-1B Approval).

Employers should also be aware that the H-1B border security fee has been reinstituted. A $4,000 fee must be paid for a petition requesting new H-1B status if the H-1B petitioner employs 50 or more employees in the US with more than 50% of its US employees under H-1B, L-1A, or L-1B nonimmigrant visa statuses. See Legal Update, Immigration Provisions Included in 2016 Budget Bill.

Practical Law has a collection of resources to help employers develop strategies for preparing and filing H-1B petitions for their foreign workers. For more information and links to these resources, see The H-1B Visa Classification Toolkit.

Employers that are unable to file an H-1B petition, or are unsuccessful in obtaining H-1B status for their foreign workers, may find alternative nonimmigrant visa status options in Practical Law's Key Nonimmigrant Visa Classifications Chart.