The U.S. Citizenship and Immigration Service (“USCIS”) is set to begin accepting H-1B visa applications pursuant to its Fiscal Year 2014 (FY2014) quota. The first day on which USCIS will accept new, cap-subject H-1B petitions, is Monday, April 1, 2013.
About the H-1B Program and the Annual Cap
The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA). Upon the creation of the H-1B visa type, INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year. This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2014 starting on October 1, 2013.
H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model. Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers. H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).
There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year. The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap; H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap. Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.
Timing of the Cap-subject H-1B Petition Filing
The earliest date on which cap-subject H-1B petitions to be counted under the FY2014 H-1B cap is April 1, 2013. By law, the earliest starting employment date for petitions approved under the FY2014 H-1B cap is October 1, 2013. As a result of this up to 6-month window between the time of filing and the time of employment, it becomes important to plan properly with respect to resources, valid status in the U.S. and work authorization.
Before an H-1B petition can be filed on or after April 1, there are a number of lead-time items. Employers who have not submitted Labor Condition Applications (LCAs) with the Department of Labor’s iCERT system must have their Federal Employer Identification Number (FEIN) verified – a process which generally takes 2-4 business days. Subsequently, an LCA must be filed for the offered position. LCAs tend to be certified within 7 business days. Only after the LCA is certified (with very minor exceptions) can an H-1B petition can be finalized and filed. Accordingly, it becomes important to start the H-1B petition process as early as possible. At a very minimum, an H-1B petition preparation can take at least two (2) and often at least three (3) weeks.
Cap-exempt Employers Can File H-1B at Any Time
Not all H-1B petitions must be filed under the H-1B annual cap. Certain employers can file for H-1B workers at any time of the year and without being subject to the numerical H-1B visa limitations. Such employers are generally qualified institutions of higher education (universities, colleges) and non-profit research organizations, or non-profits affiliated with institutions of higher education. Note, not all non-profit organizations qualify; only those who are engaged in research may file for cap-exempt H-1B petitions.
Please see our helpful Guide to H-1B Cap Exempt Employers for more details.
Projections About This Year’s H-1B Cap
As discussed above, the H-1B cap “opens” on April 1, 2013 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached. While it is impossible to predict exactly when the FY2014 H-1B cap will be reached, it is helpful to provide some context. For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days. For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009. For FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011. For FY2012, the H-1B cap was open between April 1, 2011 and November 22, 2011 while last year, FY2013, the H-1B cap was open between April 2, 2012 and June 11, 2012, or in just over two months.
Below is a comparison chart of the H-1B cap demand for the past two H-1B cap seasons.
As the U.S. economy is gaining strength, we believe that the H-1B cap will be finished faster than last year when it took a little over two months for all H-1B visas to be used. Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.
Throughout the H-1B filing season, we provide weekly (or more often, if necessary) updates about the status of the H-1B cap and any related developments. Please check back often or subscribe to our Weekly Newsletter to receive news and updates related to the H-1B filing season.
Because of the increasing demand and the recovering U.S. economy, it is our expectation that the H-1B cap this year will be in high demand and we recommend that clients consider their H-1B needs as soon as possible and be prepared to file on the first available date – April 1, 2013. Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.