U.S. Citizenship and Immigration Services ("USCIS") announced on November 23, 2011, that the statutory H-1B cap for FY 2012 was met. USCIS will reject any cap-subject petitions for new H-1B workers that are received by USCIS after November 22, 2011, regardless of when they were postmarked. As a result, employers will be unable to obtain new H-1B petitions with start dates between now and September 30, 2012. The filing period for FY 2013 will open on April 1, 2012, for H-1B petition start dates that will be effective on October 1, 2012, the beginning of FY 2013.
The H-1B "cap" limits new H-1B approvals to 65,000 each fiscal year. Of this amount, 6,800 are set aside for the H-1B1 visa program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Each year, any unused 6,800 Chile/Singapore H-1B1 visas are reserved for use during the next fiscal year. In addition to the standard 65,000 H-1B cap pool, there are 20,000 additional H-1B numbers made available for foreign workers with a master’s or higher degree from a U.S. academic institution. As of October 19, 2011, sufficient numbers of applications were received by USCIS to meet the 20,000 advanced degree exemption cap also.
It is important to note that only NEW H-1B petitions are subject to the cap. The following H-1B filings are NOT subject to the cap:
- H-1B petitions for an extension of status;
- H-1B change-of-employer petitions;
- H-1B amendment petitions;
- H-1B concurrent employment petitions;
H-1B petitions filed by cap-exempt organizations, including:
- institutions of higher education;
- nonprofit research organizations; and
- entities related or affiliated with an institution of higher education, a nonprofit research organization or a governmental research organization;
- H-1B petitions for J-1 nonimmigrants who received a waiver of the two-year foreign residency requirement based on certain interested state or federal agency requests; and
- H-1B petitions for beneficiaries who were counted against the cap within the preceding six years, unless the beneficiary is entitled to request a new six-year period.
Employers should discuss alternative visa options with experienced immigration counsel now that the H-1B cap for FY 2012 has been met.