News - April 2013

USCIS Announces H-1B Cap for Coming Fiscal Year Has Been Reached

The USCIS announced on April 5, 2013 that it had received enough new H-1B petitions to consume all of the 65,000 available H-1Bs for this coming fiscal year, which begins on October 1, 2013 and ends on September 30, 2014. The USCIS has also stated that all of the 20,000 H-1B numbers for beneficiaries holding advanced degrees from U.S. universities have been allocated. The agency reported that it received a total of 124,000 H-1B petitions during the first week of April 2013, and conducted a lottery to determine which petitions would receive cap numbers. Petitions for H-1B classification may be filed up to six months in advance of the work start date.

The announcement confirmed that the regular cap was reached during the first five days that the USCIS could accept H-1B petitions under the FY2014 cap, which began Monday, April 1 through Friday, April 5, 2013. While the congressionally-mandated total H-1B cap for FY2014 is 65,000, over ten percent of those numbers are reserved for nationals of Chile and Singapore under the Free Trade Agreements (FTAs) that took effect January 1, 2004. (Many of the Singapore and Chile numbers are expected to be added back to the general H-1B cap after October 1.)

Cap-Exempt Cases, Filings on Behalf of Current H-1B Workers Continue to Be Accepted

USCIS will continue to accept H-1B petitions that are not subject to the cap. Employers should be aware that the cap does not affect H-1B employees who: (1) change employers; (2) apply for extensions of stay; and, (3) change jobs after working under a previously approved petition. Also, the cap does not apply to employees of institutions of higher education and related non-profit entities or non-profit research organizations.

In order to obtain more H-1B numbers, Congress will need to enact new legislation. The H-1B program has received considerable attention in the Comprehensive Immigration Reform proposal that is currently before Congress.

Employers who miss this year's cap will have to wait to file new H-1B petitions on April 1, 2014 for new cap numbers available for Fiscal Year 2015. Those H-1B numbers will only be available for start dates on or after October 1, 2014. Employers may file up to six months in advance of the H-1B visa or status start date.


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