Mark A Ivener, A Law Corporation

H-1B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) announced on April 5, 2013, that it had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. This was the first time since 2008 that the cap was reached within the first week of the filing period. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. The agency is not accepting any more H-1B petitions subject to the FY 2014 cap or the advanced degree exemption. On April 7, USCIS conducted a computer-generated random selection process (“lottery”) for FY 2014 cap-subject petitions received through April 5, 2013. USCIS also conducted a lottery the same day for the advanced-degree petitions. According to USCIS, data entry for H-1B cap-subject cases filed via premium processing should be completed by April 15, 2013. The agency has begun to issue receipts for these applications. Adjudication of the premium processing cases should be completed within the required 15 days.

In the meantime, data entry for non-premium processing H-1B cases is slated to begin on April 16, 2013, and may proceed until late April or early May. USCIS has cautioned stakeholders that it may not issue receipt notices until May. Cases that are not selected for the lottery, or rejected, may not receive rejection notices until June. Petitioners may convert any non-premium processing case to a premium process case, but a request to convert the case can only be made after its receipt notice is issued.

Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, so April 1, 2013, signaled the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university.

The H-1B cap for fiscal year 2013 was reached in June 2012. The pace of hiring this year meant that heavy demand for new H-1B workers resulted in the new cap being reached in the first few days in April. As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.