The numerical limitation, or H1B cap, for fiscal year (FY) 2012 was reached on November 22, 2011. Employers may submit cap-subject H-1B petitions again on April 1, 2012, for the FY 2013 H-1B program. Beneficiaries of cap-subject petitions may begin employment no earlier than October 1, 2011. It is difficult to say when the H1B cap will be reached again next year. Therefore, we recommend that employers be prepared to have their petitions delivered to USCIS on April 1, 2012. Due to longer delays in the LCA process, it is best to notify us as soon as possible about a new H-1B employee, so that we may immediately begin preparing these cap-subject cases.
Petitions are only subject to the FY 2012 H1B cap if the beneficiary has not been previously counted against the H cap. Thus, “new” H-1B petitions are cap-subject, but most petitions for extension, change of employer, or concurrent employment are not affected by the H-1B cap. Further, petitions on behalf of foreign nationals to be employed by institutions of higher education (or related or affiliated nonprofit entities), nonprofit research organizations, or governmental research organizations are not subject to the cap. If an employer wishes to hire an H-1B employee currently employed at such an organization, the new petition would be cap-subject. Please contact us to determine whether a case is cap exempt or cap subject before filing.