Haynes and Boone, LLP’s Immigration Practice Group reminds employers with a need for H-1B petitions that are subject to the annual numerical limit (“Cap-Subject”) that the filing window for Fiscal Year 2013 (October 1, 2012 – September 30, 2013) is about to open. Employers will be able to submit new H-1B petitions to the United States Citizenship and Immigration Services (“USCIS”) on April 2, 2012 and approved applicants will be able to start their H-1B employment on October 1, 2012. Given the increase in filings over the last few years and the difficulty in predicting employer demands in the current economic climate, employers with a need for H-1B visas should be ready to mail out their petitions to be received on April 2, 2012 or shortly thereafter.
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. Although the cap may not be reached in early April, the timeline has generally been shortening in recent years. If the cap is reached in the first few days of April 2012, 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 2013 should contact the Immigration Practice Group as soon as possible.
Assessing Your Cap-Subject H-1B Needs
H-1B visas are used to employ foreign professional workers, with university degrees, who work in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. For current or transferring employees, employers should consider who might need to file an H-1B for Fiscal Year 2013:
- 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 want an H-1B to be eligible to apply for their 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 that 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.
In some cases employers may be exempt from the numerical limit. 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).