The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2013 begins on Friday, March 30, 2012. USCIS will accept cap-subject H-1B petitions for FY 2013 on Monday, April 2, 2012 for employment with a start date of October 1, 2012 or later.

Employers should identify current and future employees who will need H-1B 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.

A total of 85,000 new H-1Bs are made available each government fiscal year – 65,000 under the “regular cap” and 20,000 under the “Master’s cap” for those with advanced degrees from U.S. universities and colleges.

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, since FY 2010, the cap has been reached later in the year, anywhere between the months of October and January.

Given the difficulty of predicting the demand-level for H-1Bs on April 2 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). H-1B petitioners opting to obtain a Prevailing Wage Determination from the U.S. Department of Labor (DOL) should also keep in mind that it is taking up to 60 days to receive the determination.

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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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