H-1B Cap-Subject Petitions Will Be Accepted by USCIS Beginning April 1; Employers Urged to Start Process Now as Lottery Is Anticipated

April 1 is the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B cap-subject petitions for next year's allotment of visas for foreign national professionals in specialty occupations. Cap-subject H-1B visas become available each year on October 1—and filings with USCIS can be made no sooner than six months in advance. April 1 is the first day filings will be accepted. With the H-1B cap reached within the first 5 five days of filing in April 2013, there is pent up demand for H-1B visas in 2014.  It is anticipated that even more H-1B visas will be filed this year due to this increased demand, as well as any efforts to increase the overall H-1B cap with the passage of Comprehensive Immigration Reform have stalled.  Therefore, it is very important that employers pay attention to these timing issues to ensure that any H-1B visas that are needed for October 1, 2014, are filed on April 1, 2014.

Background on H-1B Cap

Per immigration rules, a limited number of H-1B work visas are available each year. Under the regular H-1B cap, 65,000 H-1B visas are available. An additional 20,000 are available under an exemption for foreign nationals (usually F-1 students) who have graduated from a U.S. college or university with a master's degree or higher.

Cap-subject H-1B visas become available each year on October 1 — and filings with USCIS can be made no sooner than six months in advance. The H-1B visa is the most popular visa category for employers to obtain work authorization for key foreign national employees, and is available for a wide variety of professional positions, including engineering, biology, computer science, accounting, teaching, sales/marketing and many other professional occupations. Foreign nationals who will fill a professional "specialty occupation" position can qualify for H-1B status. A "specialty occupation" is an occupation that requires at least a bachelor's degree (or the equivalent) as a minimum requirement. The foreign national must have a bachelor's degree (or the equivalent) in the field of specialty in order to qualify for H-1B status.

It is important to note that not all H-1B cases are subject to the cap. People, not petitions, are to be counted under the H-1B cap. Under this rule, if the foreign national listed on the petition does not already have H-1B status, the H-1B visa petition counts against the cap.

Allotment for Fiscal Year 2014 H-1B Cap Reached Immediately Upon Filing in April 2013

USCIS will accept H-1B cases for each fiscal year until the entire allotment of 65,000 and 20,000 have been exhausted. Last year, the allotment of H-1B visas for fiscal year (FY) 2014 was reached much earlier than in previous years.  Until last year, the H-1B cap for the entire fiscal year was not reached immediately upon an April 1 filing since April 2007 and April 2008.  From 2009 until 2012, the allotment of H-1B visas lasted for several months after the initial filings made on April 1.   For example, for FY2013, the cap was reached on June 12, 2012.

During last year's process, USCIS announced on April 8, 2013, that 124,000 cap subject H-1B petitions were received between April 1 and April 5. During last year's H-1B cap season, because there were sufficient cases to meet the annual cap of 65,000 for regular cases and 20,000 U.S. advanced degree exemption cases, USCIS conducted a computer-generated random selection process. The "lottery" was conducted on April 7, 2013.  USCIS first conducted the random lottery of the 20,000 H-1B cases eligible under the master's cap exemption. Those cases not selected as one of the 20,000 under the master's cap exemption were then included in the random lottery for the 65,000 allotment. Those cap-subject petitions not selected during the random lottery will be sent back, with filing fees.

Although USCIS announced prior to April 1, 2013, that it would start processing premium processing cases on April 15, 2013, USCIS actually started receipting, processing and approving H-1B cases before April 15, 2013.  With premium processing cases, USCIS will send out email receipt notices that will indicate that USCIS has started processing the case under its premium processing service. This notification would indicate that a case was selected under the random lottery. For cases filed without premium processing that were selected in the lottery, USCIS sends a hard copy receipt notice by mail. Such receipt notices were issued up to several weeks after the April 7 lottery.

H-1B Cap Lottery Anticipated for April 2014 — U.S. Employers Must Prepare Now for April 1 Filings

With the H-1B cap reached immediately upon filing last year, and the failure of Comprehensive Immigration Reform to be passed allowing for an overall increase in the H-1B cap, this means that even more filings will be made on April 1 this year. Therefore, companies looking to hire H-1B workers must start working on H-1B petitions now to be ready for an April 1 filing with USCIS.  Like last year, it is anticipated that the allotment of regular and master's cap cases will be exhausted within the first five business days of April 1. Under current rules, USCIS will accept all H-1B petitions properly filed during the first five business days before conducting a random selection process, so that petitioners need not file H-1B petitions exactly on April 1. USCIS will also implement premium processing after the random lottery is conducted. As in the past, if a case is not chosen, USCIS will return the petition along with all applicable filing fees, including the $1,225 premium processing filing fee.

U.S. employers are strongly urged to start preparing for H-1B cap season and the filing of April 1 H-1B petitions.  Although the H-1B petitions cannot be filed to arrive at USCIS until April 1 (or within the first five business days of April), U.S. employers can start to gather information and prepare the necessary paperwork for filing the USCIS.  A key piece of paperwork needed for the filing of the H-1B petition is the approval and certification of the labor condition application (LCA) with the Department of Labor.  DOL is currently processing LCAs within a seven (7) business day seven-business-day time frame.  Therefore, employers should anticipate this wait time (at least) in receiving an approved labor condition application.  With the budget deal recently reached by Congress, there will not be a government shutdown which that would cause an issue with the processing of these applications.  Employers should start working on LCAs, and the other necessary paperwork, now to avoid crunch time issues immediately before the April 1 filing date.

Cap Exceptions Include Petitions for Employment Change, Extension Petitions

It is important to note that not all H-1B cases are subject to the cap. People, not petitions, are to be counted under the H-1B cap. Under the rule, if the foreign national listed on the petition does not already have H-1B status, the H-1B visa petition counts against the cap.

Cases subject to the H-1B cap include:

• Petitions for new H-1B employment of foreign national who is outside of the U.S.
• Petitions for new H-1B employment requesting a change of status from F-1 to H-1B
• Petitions to change H-1B employment from a cap-exempt entity (such as a university) to a cap-subject entity (such as a private employer)

Cases NOT subject to the H-1B cap include:

• Petitions to change employers for a foreign national already in H-1B status with a cap-subject entity
• Petitions to extend or amend H-1B status
• Petitions for H-1B concurrent employment
• Petitions filed by institutions of higher education and non-profit organizations that are related to institutions of higher education
• Petitions for J-1 physicians who receive a waiver of the two-year home residence requirement
• Petitions for Chilean, Singaporean and Australian citizens pursuant to special H-1B1 and E-3 procedures

Conclusion

Employers should start to prepare now for H-1B cap season.  With an increase in demand for H-1B visas and an anticipated random lottery to be conducted, employers need to prepare and file any needed H-1B petitions to be received by April 1, 2014.  We will provide further updates on H-1B cap information you might need to consider if an H-1B petition is filed on April 1 and is unfortunately not selected by USCIS in the random lottery.