Cap-Subject H-1B Petitions for FY 2014 Should Be Filed on March 29, 2013

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2014 begins on Monday, April 1, 2013. The initial filing date for petitions seeking H-1B status with an effective date of October 1, 2013 is Friday, March 29, 2013. (Petitions actually need to be mailed on March 29 to secure receipt by the U.S. Citizenship and Immigration Services on April 1.)

Employers should identify current and future employees who will need H-1B visa status to be legally employed. Individuals currently employed as F-1 students or J-1 trainees, individuals seeking to change to H-1B from another work status (such as L-1, TN, or E-3), and individuals outside of the United States commonly require new, cap-subject H-1Bs.

The annual limit for new H-1Bs is 65,000 (less 6,800 set aside for citizens/nationals of Chile or Singapore), with an additional 20,000 available to H-1B applicants who possess a Master’s or higher degree from a U.S. academic institution. Applicants qualify for an H-1B under the additional 20,000 allotment if they have completed all of the requirements for an advanced degree at the time the petition is filed.

Not All H-1B Petitions Are Subject to the Annual Quota

Not all H-1B petitions are subject to the annual limit. The following types of H-1B petitions are exempt from the H-1B cap:

• Petitions filed to extend or amend H-1B employment for foreign workers already in H-1B status; and
• Petitions filed on behalf of new workers to be employed by institutions of higher education or related nonprofit entities, nonprofit research organizations, or governmental research organizations.

In previous years the annual limit for new H-1Bs was exceeded within the first few days of filing, resulting in a random, computer-generated lottery for available visa numbers. However, between FY 2010 and FY 2012, the cap was reached later in the year, anywhere between the months of October and January.

Given that the cap hit a few months earlier in FY 2013 than in the previous three fiscal years and, as the economy continues to improve, it is important that employers file all new H-1B petitions on March 29, 2013. As no one can predict what the demand for H-1Bs will be on April 1, 2013 and thereafter, it is prudent for employers to immediately begin identifying persons for whom H-1B sponsorship will be needed. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the prerequisite Labor Condition Application (LCA).

The LCA, which is submitted online with the U.S. Department of Labor, is a prerequisite to a properly-filed H-1B petition. As part of the application, employers attest that they will pay the H-1B worker the higher of the prevailing wage for that position in the geographic area of employment or the actual wage paid to other employees in the same position.

In light of LCA processing delays, advance preparation is even more critical. The current LCA processing time is approximately seven days, and employers must take this additional processing time into consideration to guarantee the timely approval of the LCA and the ability to file the H-1B petition on March 29, 2013. Therefore, we strongly advise that you contact the Ogletree Deakins attorney with whom you normally work to initiate any new H-1B petitions as early as possible.