U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory cap (65,000) for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.  As of April 5, 2013, USCIS will no longer accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.  Any cap-subject petitions submitted will now be rejected. 

On April 8th USCIS further announced that it received approximately 124,000 H-1B petitions during the filing period and that it has generated a “lottery” to select a sufficient number of petitions needed to meet the 65,000 and 20,000 quotas.  Any case that was not chosen in the advanced-degree lottery was considered in the lottery for the standard 65,000 H-1B quota. Cases that have not been chosen in either lottery will be rejected and returned with their filing fees.

Although this means that US employers who need certain specialty skilled foreign national workers will have to wait until next April to petition and until October 2014 (yes, 2014) to employ a new H-1B worker, not all is lost when it comes to employment-based visas.  Employers still have options:

Cap exempt H-1B petitions may still be filed.  This includes extension, amendment or change of employer filings for current H-1B holders.  In addition, certain non-profit petitioners that are or affiliated with institutions of higher education or research may be exempt from the Cap as well as foreign national physicians that have obtained a J-1 waiver.

  • There are still cap subject H-1B1s for Singaporean and Chilean nationals;
  • E-3 visas are also available for Australian nationals;
  • NAFTA (TN) visas have no limit for nationals of Canada and Mexico;
  • Many graduating foreign national students are eligible for Optional Practical Training (OPT) work authorization which can last from 1 year to 29 months for “STEM” graduates of US institutions whom are hired by employers enrolled in E-Verify.  These students may be eligible to change to an H-1B next year;
  • Employers may utilize interns or trainees under various J visa exchange programs;
  • Multinational or treaty investor/trader employers may take advantage of the L-1 or E-1/E-2 visa for eligible executive, manager, supervisor, specialist or essential skills employees; and
  • Employers hiring individuals who are considered extraordinary or outstanding in their respective field may be eligible for an O-1 visa. 

Finally, as we write this entry, the prospects of US immigration reform legislation remain hopeful.  Although the US Congress is still working out the details, some of the legislative blueprints have included expansion of the H-1B quota.