Morgan Lewis

LawFlash/Client Alert

  • published on:

    01/17/2013
  • by:

    Immigration Practice

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Now is the time for employers to assess their FY 2014 H-1B needs and to start preparing their petitions for submission on April 1.

On April 1, 2013, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions for fiscal year 2014, with an employment start date of October 1, 2013. We recommend that all H-1B petitions subject to the FY 2014 cap should be sent to USCIS on March 29 for receipt by USCIS on April 1. Any cap-subject H-1B petitions that are received by USCIS before April 1 will be rejected.

There is a quota of 65,000 cap-subject H-1B visas each fiscal year. A separate allotment of 20,000 H-1B visas is available to foreign nationals who hold a master's or other advanced degree from a U.S. institution of higher education. As indicated in the below table, demand for H-1B visas has fluctuated in past years. In recent years, it has taken months to reach the cap, while in 2007 and 2008, the cap was reached within the first few days of filing. Although it is not possible to predict with complete accuracy what the demand for H-1B visas will be this year, an improving economy and an increasing demand for qualified workers, especially in the IT industry, suggest strongly that the cap will be reached earlier than last year and possibly within a week of April 1. Employers are therefore advised to submit their cap-subject H-1B petitions as early as possible.

Year

H-1B Cap Numbers*

Date H-1B Cap Reached

2007 (FY 2008 cap)

85,000

April 3, 2007

2008 (FY 2009 cap)

85,000

April 7, 2008

2009 (FY 2010 cap)

85,000

December 21, 2009

2010 (FY 2011 cap)

85,000

January 26, 2011

2011 (FY 2012 cap)

85,000

November 22, 2011

2012 (FY 2013 cap)

85,000

June 11, 2012

*By law, 6,800 of the 65,000 H-1B visas are allocated as H-1B1 visas to nationals of Chile and Singapore.

Only petitions filed on behalf of foreign nationals who have not previously been counted against the H-1B cap in the last six years are subject to this year's H-1B cap. Foreign nationals employed by institutions of higher education, nonprofit research organizations, or governmental research organizations are not subject to the cap.

How This Affects You

Employers should review the immigration status of their current and potential foreign national employees and identify any individuals for whom H-1B status would be beneficial. These individuals would include the following:

  • Foreign nationals in TN and E status whom the employer may want to sponsor for permanent residence
  • Recent graduates employed in F-1 status and candidates abroad who are subject to the annual H-1B cap
  • Candidates in some other nonimmigrant status (e.g., L-1B) who are approaching the maximum limits of their status and would benefit from a change of status to H-1B
  • Candidates in another nonimmigrant status who are working for a different employer and would require an H-1B visa to change jobs
  • Candidates in TN, E, or H-1B1 status who are considering pursuing permanent residence

Note that if the numerical limit on visa numbers is reached on any one of the first five business days of the cap season, all petitions received by USCIS between Monday, April 1, and the close of business on Friday, April 5, will still be accepted, but their selection for adjudication will be subject to USCIS conducting a lottery among them.

Contacts

For more information, or if you have any questions regarding the issues discussed in this Immigration Alert, please contact any of the following attorneys:

Washington, D.C.
Eleanor Pelta
Eric S. Bord

San Francisco
A. James Vázquez-Azpiri
Malcolm K. Goeschl

Boston
Lisa Stephanian Burton

London
Tracy Evlogidis