Haynes and Boone, LLP’s Immigration Practice Group reminds employers with a need for Cap-Subject H-1B petitions - those petitions that are subject to the annual numerical limit - that the filing window for Fiscal Year 2014 is about to open. Over the last three years, the cap has been reached at an earlier and earlier date: June 11, 2012 (FY 2013), November 23, 2011 (FY 2012) and January 27, 2011 (FY 2011). Given the quickening pace at which the cap has been reached in the last few years, employers intending to file cap-subject petitions for Fiscal Year 2014 should contact Haynes and Boone’s Immigration Practice Group as soon as possible.

The 2014 Fiscal Year runs from October 1, 2013 to September 30, 2014. Employers will be able to submit new H-1B petitions to the United States Citizenship and Immigration Services (“USCIS”) on April 1, 2013 (six months before the start of the 2014 Fiscal Year) and approved applicants will be able to commence their H-1B employment on October 1, 2013.

USCIS will accept only 65,000 regular petitions (including 6,800 set aside for employees from Chile and Singapore) and 20,000 U.S. Master’s degree (or higher) petitions. If the cap is reached in the first few days of April 2013, USCIS is expected to institute a random lottery process to allocate the cap amongst those who have already filed petitions. Therefore, employers with anticipated Cap-Subject H-1B petitions for Fiscal Year 2014 should have these petitions ready to submit in early April.

Assessing Your Cap-Subject H-1B Needs

H-1B visas are available to specialty occupations requiring the attainment of a bachelor’s degree or its equivalent, along with the theoretical and practical application of a body of highly specialized knowledge including architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts. For current or transferring employees, employers should consider who might need to file an H-1B petition for Fiscal Year 2014:

  • Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need a change of status to H-1B;
  • Determine whether any TN employees (NAFTA professionals) might need H-1B status to be eligible to apply for adjustment of status to a permanent resident;
  • Review those employees who are on expiring O visas which are renewable in only one-year increments (as compared to the three-year visa period under an H-1B);
  • Check whether your transferring employees who currently hold an H-1B have already been counted against the cap (note: anyone who is coming to you from an employer that is exempt from the numerical limit (“Cap-Exempt”) will not have been counted toward the cap and under that transfer, may now fall within the quota); and
  • Consider whether you employ someone in L-1B status (intra-company transferees with specialized knowledge) who might need to switch to an H-1B to gain an additional year of status.

Cap-Exempt Circumstances

Employers may be exempt from the numerical limit in certain situations. These Cap-Exempt situations include: higher education institutions and related non-profits; non-profit or government research organizations; and beneficiaries who have held H-1B status in the last six years (but have not exhausted their entire six-year period).