April 1 is the first day U.S. Citizenship and Immigration Services 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. With the H-1B cap reached in only two months in 2012, and USCIS predicting the first random lottery since April 2008, it is very important that employers pay attention to these timing issues to ensure that any H-1B visas needed for October 1, 2013, are filed on April 1, 2013.

USCIS Predicts H-1B Cap-Subject Petitions Will be Subjected to Random Lottery

In its March 15th announcement about H-1B petitions subject to the fiscal year (FY) 2014 numerical cap, USCIS anticipates that it may receive more than 65,000 cap-subject H-1B petitions and more than 20,000 H-1B petitions for individuals holding a U.S. master's degree or higher between April 1, 2013 and April 5, 2013. As noted by USCIS, the last time the H-1B cap required a lottery was in April 2008.

On April 12, 2008, computer-generated random lotteries for both the master's cap and regular cap were conducted. After these lotteries were conducted, USCIS began notifying applicants who were selected in the lottery process. If such lotteries are required for FY 2014, it is expected that USCIS will follow similar procedures as conducted in April 2008. Under the random lottery system, USCIS will first conduct a random lottery of the 20,000 H-1B cases eligible under the master's cap exemption. For those cases that are not selected as one of the 20,000 under the master's cap exemption, those cases are then included in the random lottery for the 65,000 allotment.

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. It is anticipated that USCIS will conduct a random lottery (if needed) sometime during the week of April 8.

USCIS Announces Premium Processing for H-1B Cap Cases to Start on April 15th

In addition to predicting that this year's H-1B numerical cap may be subject to a random lottery, USCIS also announced on March 15th that premium processing for H-1B cap cases will begin on April 15th. Under this approach, USCIS will accept Form I-907, Request for Premium Processing Service and the $1225 premium processing fee for H-1B cap cases – but processing and adjudication of FY 2014 H-1B cap cases will not begin until April 15. In the March 15 announcement, USCIS confirmed that requests for premium processing on cases other than FY 2014 H-1B cap cases will continue to begin on the date that the request is received.

Please follow this link for additional information from USCIS regarding the March 15th announcement and this link for additional materials from USCIS for FY 2014 H-1B cap cases.

Additional information can also be found on our previous legal update from January 25, 2013.