United States: Fiscal Year 2013 H-1B Cap Filing Starts on April 2
The H-1B filing season will begin on Monday, April 2, 2012. Though it is unlikely that the H-1B cap will be reached during the first days of the filing season, employers should prepare in advance to file petitions on April 2, 2012, or at least during the first five business days of the filing period.
Monday, April 2, 2012 marks the opening of the filing period for cap-subject H-1B employment in Fiscal Year (FY) 2013, which begins on October 1, 2012. Though the FY 2012 cap filing season ended only recently, many employers are assessing their H-1B needs for the coming year and are now wondering how to best ensure that their hiring demands are met.
Even though the FY 2012 cap was met just a few months ago, demand for the coming fiscal year could be stronger than anticipated, as the rapid usage of H-1B cap numbers in the last weeks of the FY 2012 filing period suggests. In addition, companies that filed fewer H-1B petitions than their normal practice in the last several years could resume higher levels of filings in the coming cap season.
Although it is unlikely that the H-1B cap will be reached during the first days of the FY 2013 filing season, demand for cap numbers is unpredictable. Therefore, we recommend that employers file petitions on April 2, 2012, or at least during the first five business days of the filing period. This is the best option to ensure that H-1B hiring needs can be met for the coming fiscal year. We strongly advise gathering H-1B petition documentation in advance and seeking certified labor condition applications (LCAs) from the Department of Labor as soon as possible, though employers must track carefully both the H-1B petition validity dates and the validity dates of the LCA.
Employers filing petitions on April 2 should plan to send FY 2013 cap-subject cases to USCIS no later than Friday, March 30, or Saturday, March 31, for next business day delivery on April 2, 2012. Cases delivered over the weekend will likely be processed and receipted as if received on April 2 and will not be advantaged over those delivered on April 2. Cap-subject cases must be received by USCIS no later than Friday, April 6 to be filed within the first five business days of the filing period.
There is no value to submitting H-1B petitions on or before March 30, 2012. Agency regulations allow employers to file H-1B petitions up to six months in advance of the requested start date, which is the date on which the fiscal year begins. FY 2013 H-1B cases that arrive on Friday, March 30, 2012 or earlier will be rejected.
Under agency regulations, if USCIS receives more than enough petitions to reach the 65,000 standard cap in the first five business days of the filing season—Monday, April 2, 2012 through Friday, April 6, 2012—it runs a lottery to select the cases that are awarded quota numbers, and eligible advanced-degree filings would continue to be accepted until it receives received sufficient number to exhaust the 20,000 exemption for these cases. If the quota is not reached during the first five days, which it was not during the FY 2010, FY 2011 and FY 2012 filing seasons, USCIS will continue to accept filings until it determines that it has received enough cases to meet the cap for the year.
If your organization is planning to petition for H-1B employment in FY 2013, contact your designated Fragomen professional to discuss the process. As always, advance preparation is key. Petition documentation should be gathered and prepared as soon as practicable. Employers should be aware that last-minute changes in USCIS and DOL procedures and regulatory requirements are always possible. Fragomen closely monitors H-1B policy and practice, and will issue further Client Alerts as developments occur. If you have any questions regarding how to best prepare H-1B petitions in advance of April 2 or general questions regarding the H-1B filing process, please contact your designated Fragomen professional.