News - June 2012

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

The USCIS announced on June 11, 2012 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, 2012 and ends on September 30, 2013. 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. 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 less than three months after the first day that the USCIS could accept H-1B petitions under the FY2013 cap, which was Monday, April 2, 2012. While the congressionally-mandated total H-1B cap for FY2013 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 quota. 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 where the employer files to amend 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. We cannot predict the likelihood of the President signing into law a bill increasing H-1B numbers.

Employers who miss this year's cap will have to wait to file new H-1B petitions commencing in Fiscal Year 2014. Those H-1B numbers will only be available for start dates on or after October 1, 2013. Employers may file up to six months in advance of the H-1B visa or status start date, and should plan their case strategy accordingly.


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