United States: H-1B Cap Filing Season Opens April 1, 2013

United States: H 1B Cap Filing Season Opens April 1, 2013Due to the improving economy, the annual H-1B cap is expected to be reached earlier than in recent years. Therefore, employers should plan to submit H-1B cap petitions during the first five business days of the filing season, between April 1 and April 5, 2013.

On Monday, April 1, 2013, U.S. Citizenship and Immigration Services will begin to accept H-1B cap petitions for the FY 2014 annual quota of 85,000. We believe that demand for new H-1Bs will be higher than in the last several years, making the annual quota likely to be reached earlier. Employers should therefore plan to submit their H-1B petitions as early as possible, preferably during the first week of April, to maximize the chance of getting one of the limited number of new H-1Bs issued every year. An H-1B petition approved under the FY2014 cap will be effective no earlier than October 1, 2013, the first day of the federal fiscal year.

Early Preparation Is Key

Fragomen strongly advises gathering H-1B petition documentation well in advance. Certain corporate documents, academic transcripts, degrees, and other essential evidence can take some time to assemble.

Employers and their immigration counsel must also obtain a labor condition application (LCA) from the Department of Labor for each case. DOL typically takes up to seven days to certify an LCA, but processing can take longer in many cases. In addition, as the opening day of the filing season approaches, the online LCA system can become overloaded, resulting in processing delays. Therefore, LCAs should be sought as early as possible.

When to File

The earliest that H-1B cap filings can be made for FY 2014 is the week of Monday, April 1, 2013 through Friday, April 5, 2013. Cases received by USCIS within those five business days are treated equally for cap counting purposes.

To safeguard against delivery delays, we recommend sending cases for arrival on April 1, the first possible filing day. Employers who wish to file on April 1 should plan to send their cap-subject cases to USCIS no later than Friday, March 29, or Saturday, March 30, for next business day delivery on the following Monday. Cases delivered over the weekend will likely be processed and receipted as if received on April 1 and will not have an advantage over those delivered on April 1. Cap-subject cases must be received by USCIS no later than Friday, April 5 to be filed within the first five business days of the filing period.

Employers should not submit H-1B petitions for delivery on or before March 29, 2013. Agency regulations allow employers to file H-1B petitions up to six months in advance of the requested start date of October 1, but no earlier. FY 2014 H-1B cases that arrive on or before Friday, March 29, 2013, will be rejected.

In the unlikely event that sufficient petitions are received in the first five business days of the filing season to completely use up the entire annual quota, USCIS will run a lottery to choose the cases that will be processed to completion. If the cap is not reached during this initial five-day period, USCIS will accept filings on a day-by-day basis until the quota is filled.

The annual H-1B quota is 65,000, with an additional 20,000 slots for foreign nationals with U.S. advanced degrees. However, not every H-1B petition is subject to the annual quota. In general, the H-1B cap does not apply to people who currently hold H-1B status. Therefore, extensions, amended petitions, changes of employer and requests for concurrent employment for existing H-1B workers are not subject to the cap and can be filed and approved at any time. However, H-1B workers may be subject to the cap if their previous H-1B was sponsored by an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. A foreign national may also be exempt from the cap if he or she held H-1B status in the past, but for less than the maximum period of six years.

If your organization is planning to petition for H-1B employment in FY 2014, contact your designated Fragomen professional to discuss the process. 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.

Source: Fragomen