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. April 1 is the first day filings will be accepted. With the H-1B cap reached in only two months in 2012, it is very important that employers pay attention to these timing issues to ensure that any H-1B visas that are needed for October 1, 2013 are filed on April 1, 2013.

Background on H-1B Cap

Per immigration rules, a limited number of H-1B work visas are available each year. Under the regular H-1B cap, 65,000 H-1B visas are available. An additional 20,000 are available under an exemption for foreign nationals (usually F-1 students) who have graduated from a U.S. college or university with a master's degree or higher.

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. The H-1B visa is the most popular visa category for employers to quickly obtain work authorization for key foreign national employees, and is available for a wide variety of professional positions, including engineering, biology, computer science, accounting, teaching, sales/marketing and many other professional occupations. Foreign nationals who will fill a professional "specialty occupation" position can qualify for H-1B status. A "specialty occupation" is an occupation that requires at least a bachelor's degree (or the equivalent) as a minimum requirement. The foreign national must have a bachelor's degree (or the equivalent) in the field of specialty in order to qualify for H-1B status.

It is important to note that not all H-1B cases are subject to the cap. People, not petitions, are to be counted under the H-1B cap. Under this rule, if the foreign national listed on the petition does not already have H-1B status, the H-1B visa petition counts against the cap.

Allotment for Fiscal Year 2013 H-1B Cap Reached in June 2012

USCIS will accept H-1B cases for each fiscal year until the entire allotment of 65,000 and 20,000 have been exhausted. Last year, the allotment of H-1B visas for fiscal year (FY) 2013 was reached much earlier than in previous years. On June 12, 2012, USCIS announced that it had received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for FY 2013. The final receipt date for new H-1B petitions requesting an October 1, 2013 start date was June 11, 2012. On June 7, 2012, USCIS reached the 20,000 limit under the master's cap exemption. Reaching the H-1B cap in June 2012 was much sooner than in the past three H-1B cap filings for FY 2010, FY 2011, and FY 2012. The cap was reached for FY 2012 on November 22, 2011; the cap was reached for FY 2011 on January 26, 2011; and the cap was reached for FY 2010 on December 21, 2009. With the H-1B cap being reached this past year in June, within only two months from the start of filing on April 1,means that many more filings will be made on or immediately after April 1 this year. Therefore, companies looking to hire H-1B workers must start working on H-1B petitions now to be ready for an April 1 filing with USCIS.

Filings Could Be Subject to a Lottery

It is possible that the allotment of regular and master's cap cases will be exhausted on or immediately after April 1. With both the FY 2008 and FY 2009 H-1B cap filings, there were sufficient filings made in early April which required USCIS conduct computer-generated random lotteries in April 2007 and April 2008. Under the H-1B lottery system for FY 2009, random lotteries for both the master's cap and regular cap were conducted on April 12, 2008. After these lotteries were conducted, USCIS began notifying applicants who were selected in the lottery process. If such lotteries were required for FY 2014, it is expected that USCIS would 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. USCIS will also implement premium processing after the random lottery is conducted. If a case is not chosen, USCIS will return the petition along with all applicable filing fees, including the $1,225 premium processing filing fee.

Cap Exceptions Include Petitions for Employment Change, Extension Petitions

It is important to note that not all H-1B cases are subject to the cap. People, not petitions, are to be counted under the H-1B cap. Under the rule, if the foreign national listed on the petition does not already have H-1B status, the H-1B visa petition counts against the cap.

Cases subject to the H-1B cap include:

  • Petitions for new H-1B employment of foreign national who is outside of the U.S.
  • Petitions for new H-1B employment requesting a change of status from F-1 to H-1B
  • Petitions to change H-1B employment from a cap-exempt entity (such as a university) to a cap-subject entity (such as a private employer)

Cases NOT subject to the H-1B cap include:

  • Petitions to change employers for a foreign national already in H-1B status with a cap-subject entity
  • Petitions to extend or amend H-1B status
  • Petitions for H-1B concurrent employment
  • Petitions filed by institutions of higher education and non-profit organizations that are related to institutions of higher education
  • Petitions for J-1 physicians who receive a waiver of the two-year home residence requirement
  • Petitions for Chilean, Singaporean and Australian citizens pursuant to special H-1B1 and E-3 procedures

Work Authorization Options Available for F-1 Students

If a case is not selected under this year's allotment of H-1B visas, companies and foreign nationals will need to look at alternatives to bridge the gap in work authorization until October 1, 2014 when the next allotment of H-1B visas would become available. USCIS has implemented rules to extend certain work authorization benefits for applicable F-1 students and employers. These options will again be available this year for such foreign students and their employers.

Seventeen-Month Extension of F-1 OPT for F-1 Students with STEM Degree

Post-completion Optional Practical Training (F-1 OPT) allows an F-1 foreign student to work full-time off campus for up to one year after completing his studies for "training directly related to the student's major area of study." To work pursuant to F-1 OPT, the student must apply for and receive approval from USCIS. The student must have an Employment Authorization Card (EAC) in hand to commence employment. Allowable under the rules is a 17-month extension of F-1 OPT for students with a science, technology, engineering or mathematics (STEM) degree.

To apply for the 17-month extension for a maximum of 29 months of OPT, the following requirements must be satisfied:

  • F-1 student must apply for the extension while in a valid period of post-completion OPT
  • F-1 student has successfully completed a degree included in the DHS STEM designated degree program list from a college or university certified by the U.S. Immigration and Customs Enforcement Student and Exchange Visitor Program
  • F-1 student will work for a U.S. employer in a job directly related to the student's major area of study
  • F-1 student will work for, or accept employment with, an employer enrolled in the USCIS E-Verify program
  • F-1 student has properly maintained F-1 status

Under the rule, the student must apply for extension prior to expiration of his current EAC. If the EAC expires prior to a decision on the application for the 17-month extension by USCIS, the student's work authorization end date is automatically extended for a period up to 180 days.

As part of the application extension process, the designated school official for the F-1 student's college or university will authorize the 17-month extension and certify the STEM degree. Form I-765 and supporting documents are then filed with USCIS for the STEM OPT extension. Form I-765 and instructions are available on the USCIS web site.

Form I-765 requires the F-1 student applying for a STEM OPT extension to include information in the extension application about the STEM degree conferred major field of study and the employer's E-Verify company or client identification number.

The current list of STEM degree fields can be found at the U.S. Immigration and Customs Enforcement Web site..

Cap-Gap Relief for F-1 Students with Pending H-1B Petitions

USCIS has also implemented rules for cap-gap F-1 status and work authorization for F-1 students whose F-1 OPT work authorization will expire after the filing and receipt of the H-1B petition by USCIS and before the October 1 H-1B start date listed in the petition. Under the cap-gap rules, if the  H-1B petition naming the student was properly filed, the student who was in an authorized period of F-1 OPT will have their OPT extended until the end date of the receipting period by USCIS. Then, if the H-1B petition is selected for receipting, the OPT is then extended until September 30. However, a student whose H-1B was withdrawn or denied will have his or her OPT extension terminated 10 days after the date of the withdrawal or denial. The rules emphasize that an F-1 student must be in a proper period of OPT to benefit from the cap-gap work authorization extension.

Save the Date: H-1B issues and immigration reform legislation will be key topics at Faegre Baker Daniels' annual Immigration and Global Mobility half-day seminar: Passport to Success: Anticipating Immigration Reform and Addressing Today's Expanding Global Workforce, to be held in Minneapolis on May 7, 2013. Amy M. Nice, the U.S. Chamber of Commerce Executive Director for Immigration Policy, will be the keynote speaker for the conference.