As we reported in the January 2012 issue of the Immigration eAuthority and in an earlier Legal Alert, 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. The U.S. Citizenship and Immigration Services (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 that the cap hit a few months earlier in FY 2012 than in the previous two fiscal years and, as the economy continues to improve, it is important that employers file all new H-1B petitions when the H-1B quota opens by mailing cap-subject petitions on Friday, March 30, 2012 or Saturday, March 31, 2012 for next-business-day delivery to USCIS on April 2, 2012. Cap-subject cases must be received by USCIS no later than Friday, April 6, 2012 to be considered as having been filed within the first five business days of the filing period. Under USCIS regulations, if a sufficient number of petitions to reach the cap is received in the first five business days of the filing season – Monday, April 2, 2012 through Friday, April 6, 2012 – USCIS runs a lottery to determine the cases that are awarded quota numbers.
As no one can tell what the demand for H-1Bs will be on April 2 of this year and thereafter, we strongly advise employers to immediately begin identifying persons for whom H-1B sponsorship will be needed and to contact the Ogletree Deakins attorney with whom you normally work to initiate any new H-1B petitions as soon as possible. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the prerequisite Labor Condition Application (LCA).