E-Alerts

USCIS Continues to Accept H-1B Filings for Fiscal Year 2013: Half of H-1B Visas Still Available

[May 12, 2012]  USCIS began accepting H-1B petitions on April 2, 2012 for employers who wish to sponsor foreign nationals for employment in specialty occupations that require the application of highly specialized knowledge and completion of a Bachelor’s degree or higher in the specialty occupation, for start work dates of October 1, 2012 (the beginning of fiscal year 2013) (“FY2013”), or later.  The annual cap on H-1B visas is 65,000 (6,800 additional H-1B visas are reserved for citizens of Chile and Singapore pursuant to treaty obligations, for a total cap of 65,000 visas annually).  Notably, the annual visa cap does not apply to H-1B visa transfers or extensions, or to foreign nationals working for educational or non-profit research organizations that are exempt from the cap.

The individuals affected may include:

1. F-1 student status holders who need H-1B status to continue working once the OPT expires;
2. Individuals residing outside of the USA who do not fall within the “remainder option” exception and are subject to the cap;
3. Individuals who are currently holding TN status and need to commence the green card process;
4. L-1’s who want to pursue the green card and need the ability to extend work authorization beyond the 6th year and may thus need to convert to H-1B;
5. J-1’s who have limited practical training time remaining and/or live outside of the USA; and
6. H-4’s who may be pursuing an H-1B in order to work in the USA.

In addition, 20,000 additional visas are available during FY2013 to foreign nationals who hold an advanced degree from a U.S. academic institution (commonly referred to as “advanced degree” H-1B visas).  Employers should consider using this category of H-1B category for candidates who meet the educational requirements of the advanced degree.  Employers should not file two applications for a single employee, under either the regular and advanced degree categories or other types of multiple filings, because this would be a violation of filing rules.

As of May 4, 2012, USCIS reports that it has received 32,500 petitions towards the general cap and 13,700 towards the advanced degree cap.  Therefore, we strongly encourage employers who are considering filing an H-1B petition to act as soon as possible.  Once the annual limit is reached, USCIS will not accept new H-1B petitions until April 2013.

We understand that this is an issue of significant and immediate concern to employers and we encourage you to contact us if you have any questions or require assistance.  The Firm regularly assists employers with preparing and processing employment-based non-immigrant and immigrant visa applications.  We welcome the opportunity to assist you or to answer any questions that you may have.

As always, please give the Firm a call with any questions or concerns.