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A new year brings new opportunities and challenges, and it's time for American employers to begin considering filing H-1B petitions for prospective new foreign national employees. The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in a particular field is required (for example, engineers, teachers, accountants, and many professional information technology positions). The problem is that there are limited numbers of H-1B visas available each year, and this year we expect these numbers to be quickly claimed.

There is a limit (or "cap") of 85,000 H-1B visas available each year: 65,000 for bachelor degree-level candidates and 20,000 for advanced degree graduates of American universities. These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2013 for employment beginning no earlier than October 1, 2013 (this is the beginning of the government's 2014 fiscal year, which runs from October 1, 2013 to September 30, 2014). However, we anticipate that the available H-1B visa numbers will be exhausted within the first week employers are eligible to file new H-1B petitions. If this occurs, USCIS will conduct a computer-generated random selection process, or lottery, for submitted H-1B petitions to select which petitions will be accepted for adjudication. If approved, H-1B employees will be eligible to receive an H-1B visa number and begin working for their petitioning employers.

The limit of 85,000 H-1B visas is specific for potential employees initially seeking to acquire H-1B visa or status, and does not impact current H-1B employees. Accordingly, cap-subject individuals include those acquiring the H-1B visa or status for the first time, such as foreign (F-1) students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa.

Each year the H-1B cap typically is reached well before the end of the fiscal year. For the fiscal year 2013, all H-1B visas were exhausted by June 11, 2012. Due to an improving economy, as well as an uncertain number of H-1B candidates who failed to get a visa number last year or who are waiting to apply this year, we advise employers to be proactive and move quickly to ensure their H-1B petitions are prepared and ready to file no later than April 1, 2013.

Once the H-1B cap has been reached, no new petitions may be filed until the next fiscal year (April 1, 2014 for employment beginning October 1, 2014). This can make both hiring and planning an employment start date difficult. For example, although employers can file petitions up to six months in advance of the requested effective date, which makes the April 1 filing date so critical, the approved petition will not be valid until October 1 of that year. Thus, even though employers may file petitions on or after April 1 for the next fiscal year, the petition will not be effective until October 1. This issue particularly impacts foreign (F-1) students, who often have post-graduate work authorization to allow them to remain in the U.S. and work while awaiting the H-1B effective date. In limited situations, other visa categories may be available in lieu of the H-1B. For other cap-subject individuals, such as those currently abroad or who do not have H-1B status, they must wait until October 1 before commencing employment.

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This afternoon, the USCIS announced that it has received sufficient petitions for the H-1B visa to reach the statutory cap for Fiscal Year 2012. The H-1B cap is 65,000 per fiscal year, and an additional 20,000 visas are allocated to advance degree graduates of United States universities. The "masters cap" was reached on October 19, 2011, and the regular cap was reached on November 22, 2011. Thus, any petition not filed before November 22 will be rejected. Filing will open up again for Fiscal Year 2013 on April 1, 2012 to begin work on or after October 1, 2013.

The cap does not affect individuals who have already been granted H-1B status and are extending their stay or moving to a new employer. Additionally, certain employers including universities and affiliated non-profit research centers and hospitals, are not subject to the cap. For more information on the H-1B cap, see our previous posting.
 

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The Proposed Regulation

U.S. Citizenship and Immigration Services (CIS) announced a proposed rule that would require employers of H-1B workers to complete a pre-filing registration before submitting petitions for individuals subject to the annual H-1B cap. The earliest it would go into effect would be January 2012. Once effective, employers will complete an online registration for each prospective, cap-subject H-1B employee. CIS then will provide a confirmation instructing that the employer may file a petition on behalf of the specific person. Employers still may file petitions for more than one person, but a separate pre-registration will be required for each sponsored employee.

The goal of the new rule is to allow H-1B filings only for cases that will secure one of the limited H-1B visas each year. The current system allows filing of H-1B petitions until CIS announces that the cap has been reached. Because there usually is a delay between the announcement and employers continuing to file petitions, many petitions often are rejected. The new rule seeks to alleviate this problem by allowing only pre-registered employers to file cap-subject H-1B petitions.
 

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As of January 26, 2011, Citizenship and Immigration Services indicated that it received sufficient H-1B petitions to reach the annual cap of 65,000 visas for fiscal year 2011 (October 1, 2010 – September 30, 2011). As of December 22, 2010, it had received more than 20,000 petitions toward the annual exemption amount for individuals with U.S. graduate degrees. Employers now must wait until April 1, 2011 to file "new" H-1B petitions for an October 1, 2011 effective date, which is the start of fiscal year 2012.

A “new” H-1B petition refers only to individuals acquiring the H-1B visa or status for the first time, such as F-1 students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa. These cases often are referred to as “cap-subject” cases because they require one of the 85,000 allotted visas (65,000 for bachelor-level candidates and 20,000 for U.S. graduate degree candidates). The cap does not apply to one who already has an H-1B visa or status. An exception that private sector employers should note, however, is that an H-1B foreign national currently working for a university or affiliated nonprofit, a nonprofit research organization or a governmental research organization in most cases will be subject to the cap. These organizations are exempt from the H-1B cap, and when a foreign national transitions to a non-exempt employer, he/she then becomes cap-subject.

Each year the H-1B cap typically is reached before the end of the fiscal year. Once the cap has been reached, no new petitions may be filed or approved until the next fiscal year. This can make planning an employment start date difficult. For example, although employers can file petitions up to six months in advance of the requested effective date, which makes the April 1 filing date each year so critical, the approved petition will not be valid until October 1 of that year. Thus, even though employers may file petitions in the April 1 – September 30 timeframe for the next fiscal year, the petition cannot be effective until October 1. F-1 students often have work authorization to allow them to remain in the U.S. and work while awaiting the H-1B effective date. For other cap-subject individuals, such as those currently abroad or do not have H-1B status, they must wait until October 1 before commencing employment.

The H-1B visa category is for the temporary employment of foreign nationals who will work in “specialty occupations.” Specialty occupations generally are those jobs for which at least a bachelor’s degree in a particular field is required. Examples include engineers, accountants and many information technology positions.
 

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As of April 15, 2010, Citizenship and Immigration Services indicated that it had received 13,600 "new" H-1B petitions toward the annual cap of 65,000 visas. It received an additional 5,800 petitions under the 20,000 exemption amount for individuals with U.S. graduate degrees. Similar to last year's reduced filings, it appears that H-1B visa numbers will be available for several months to come. These petition numbers are for the next fiscal year, which runs October 1, 2010 to September 30, 2011. For the prior fiscal year, the cap was not reached until December 2009.

A “new” H-1B petition refers only to individuals acquiring the H-1B visa or status for the first time, such as F-1 students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa. These cases often are referred to as “cap-subject” cases because they require one of the 85,000 allotted visas (65,000 for bachelor-level candidates and 20,000 for U.S. graduate degree candidates). It does not apply to one who already has an H-1B visa or status. An exception that private-sector employers should note, however, is that an H-1B foreign national currently working for a university or affiliated nonprofit, a nonprofit research organization or a governmental research organization in most cases will be subject to the cap. These organizations are exempt from the H-1B cap, and when a foreign national transitions to a non-exempt employer, he/she then becomes cap-subject.

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U.S. Citizenship and Immigration Services (CIS) announced today that the H-1B cap was reached on December 21, 2009. CIS will conduct a random lottery among the petitions it received on December 21 to allocate the remaining visa numbers. The cap does not apply to H-1B employees changing employers or to individuals who will work at an institution of higher education or related nonprofit entity, a nonprofit research organization or a governmental research organization. Cap-subject employers now must wait until April 1, 2010 to file petitions for the next fiscal year (October 1, 2010 – September 30, 2011).

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At a December 1, 2009 seminar in New York, representatives of U.S. Citizenship and Immigration Services (USCIS) provided an update on the H-1B cap numbers for the October 2009 – September 2010 fiscal year (please see my earlier post for more on this topic -- The H-1B "Cap" - 2010 Fiscal Year Is The Canary In The Mine) .

While a recent report indicated that 58,900 petitions had been filed against the 65,000 cap, USCIS explained that the low number of filings for nationals of Chile and Singapore (who benefit from a set aside of 6,800 visas) means that there still are visas available. USCIS also confirmed that there were approximately 2,000 petitions filed in late November. This makes it difficult to predict how much longer visas will be able for the current fiscal year. Once the cap has been reached, employers will need to wait until April 1, 2010 to file a petitions requesting an October 1, 2010 effective date. Given this recent announcement, employers that still want to file H-1B petitions for the current fiscal year likely will need to do so soon. Experience has shown that there is a rush of petitions as the filings approach the 65,000 cap. The USCIS announcement concerning recent filings suggests that this rush already has begun.

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U.S. Citizenship and Immigration Services announced on April 18, 2008 a special "cap gap solution" for F-1 students whose Optional Practical Training (OPT) expires before October 1, 2008. An April 8, 2008 interim final rule automatically extended OPT for F-1 students, but it applied only in those cases where the employer requested a "change of status" on the H-1B petition. To be eligible for the change of status from F-1 student to H-1B temporary worker, however, the student must have had less than a 60-day gap between when the OPT expires and October 1, 2008. Therefore, when employers filed H-1B petitions on April 1, it was not possible to request a change of status for any F-1 student/employee whose OPT expired on August 1, 2008 or earlier. Therefore, there were many individuals who could have benefited from the new regulation had it been published before April 1.

Recognizing the inequity of the situation, the solution announced on April 18 allows employers whose H-1B petitions are accepted on behalf of an F-1 student to amend the petition and request a change of status. The OPT then will be extended to October 1, and the individual will be permitted to remain in the United States and continue working without interruption. This is a significant benefit for individuals who otherwise were planning to spend several months abroad after their OPT expired and before they could obtain H-1B visas and return on or after October 1, 2008. After the H-1B filing confirmation has been issued (all notices are to be issued by June 2, 2008), the employer will have 30 days to amend the petition and request the change of status.

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