H-1B Cap Filings Update

On April 1, 2013, the United States Citizenship and Immigration Services (USCIS) began receiving H-1B petitions filed by employers for fiscal year 2014. USCIS has announced that it anticipates it may meet the numerical quota between April 1, 2013, and April 5, 2013. This could be the first time since April 2008 that the H-1B cap will require a lottery due to the high demand. If there is a lottery this year, it is expected that a formal announcement will be issued.

Background

U.S. employers use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in  a wide variety of specialized fields that require, at minimum, a bachelor’s degree or higher in a specific field. The fiscal year 2014 H-1B Cap is limited to 65,000 Regular Cap petitions and 20,000 Master’s Exemption cases for persons holding a U.S. Master’s degree or higher.

Not all H-1B petitions are subject to this annual cap. Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Mariana Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories seeking work dates starting in fiscal year (FY) 2014.

Similarly, petitions filed on behalf of H-1B workers who have been counted previously against the cap also do not count toward the H-1B cap. Thus, USCIS will continue to process non-cap subject petitions that are filed to extend the amount of time a current H-1B worker may remain in the U.S., to change the terms of employment for current H-1B workers, to allow current H-1B workers to change employers, or to allow current H-1B workers to work concurrently in a second H-1B position.

The H-1B lottery

All other H-1B petitions not mentioned above are subject to the cap. Petitions for cap-subject H-1Bs will be received until the USCIS determines it has received more than the maximum allowed under the H-1B cap quota. The 2013 H-1B cap was met on June 12, 2012; the 2012 cap was met on November 23, 2011. The 2011 H-1B cap was met on January 27, 2011. Prior to 2008, however, the quota had been reached on the first day. Although it’s not possible to know when the numerical limit will be met, the safest course of action is to file all H-1B petitions on the earliest possible date.

Under current USCIS regulations, if a sufficient number of petitions to reach the numerical limit is received during the first five business days in April, the USCIS will conduct a random selection process or “lottery.”  In prior years, USCIS has conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.  If numbers are used up as expected, April 5, 2013, would be the last day that petitions could be received to be included in the lottery.

Premium processing and the H-1B quota

Filing an H-1B petition with a request for premium processing will not increase the chances of obtaining an H-1B under the quota. Premium Processing Service provides expedited processing of certain employment-based petitions and guarantees a 15-calendar-day processing time. If premium processing is requested for a cap-subject case and the case is accepted for processing, the 15-day premium processing window will start on April 15, 2013, according to the USCIS press release issued March 15, 2013.

Persons with questions regarding the H-1B process or other nonimmigrant visas are encouraged to contact the attorneys at Minsky McCormick and Hallagan P.C.