News - May 2012

H-1B Visas Still Available for the Coming Fiscal Year

USCIS has announced that as of May 4 it had received 32,500 H-1B petitions during the first five weeks of H-1B filings for the coming fiscal year.

This indicates a marked increase in H-1B petitions received during the first few weeks of the H-1B cap season compared to the most recent three years.

There are 65,000 H-1B visas available for this coming fiscal year, which begins on October 1, 2012 and ends on September 30, 2013. 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 with those countries. (Many of the Singapore and Chile visa numbers are expected to be added back after October 1.) Thus, at least 58,200 H-1B visas are available under the cap for the coming fiscal year, leaving 25,700 visas available as of early May 2012, over four months before the new fiscal year begins.

The latest USCIS report also stated that the agency had received 13,700 petitions which will count against the 20,000 H-1B exempt visa numbers available during FY2012 for foreign nationals holding Masterís degrees from U.S. universities.

We expect the remaining standard H-1B numbers to be depleted over the coming few months, as those with H-1B cap-subject cases file new H-1B petitions to lock in one of the remaining H-1B cap numbers. (USCIS regulations state that issuance of cap numbers are based upon the date of receipt, not approval.) Employers may file petitions up to six months in advance of the requested employment commencement. This fiscal year, the agency announced that the cap had been reached on November 22, 2011, less than two months into the fiscal year date that began on October 1, and we expect that the FY2013 numbers will be depleted even more quickly, perhaps by the end of June.

Note 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. The cap also does not apply to employees of institutions of higher education and related non-profit entities or non-profit research organizations.


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