The US Citizenship and Immigration Service (USCIS) recently provided information to confirm that it will accept cap-subject H-1B petitions for Fiscal Year 2016 (FY 2016) during the first 5 business days of April, that is Wednesday, April 1st through Tuesday, April 7th, 2015.
With the first week of April being a “split week” and April 1st landing on a Wednesday, this of course means that there is a weekend in between, and a little more time. Is this a guarantee that you can still file an H-1B petition that will be received by USCIS before the deadline? No.
There are many things that must be done before an H-1B petition is ready to be filed. For example, generally, the US Department of Labor (DOL) takes 7 working days to process an ETA 9035 Labor Condition Application (LCA). The LCA is an essential part of an H-1B petition. Conceivably (but not necessarily advisably), one could still file an LCA and have it returned in time to meet the H-1B cap deadline. You should be aware, however, that we have heard of situations where DOL has taken more than 7 working days to process some LCAs at this time. Clearly, one shouldn’t push the limit by filing an LCA at the last minute if it can be avoided. This is the last minute.
Nevertheless, if you have a late hire or perhaps decide to move forward with H-1B sponsorship for an existing employee such as one working with an F-1 Optional Practical Training Employment Authorization Document (OPT EAD), there is still a little time (precious little) and you should of course know that the risk of not meeting the FY 2016 H-1B cap deadline increases with every day that passes.
This is just about the last call…
Ms. Wadhwani is a partner in the Immigration Group at Fox Rothschild LLP. She may be reached at firstname.lastname@example.org.