April 1st marks the beginning of duck season for immigration lawyers around the globe. We are gearing up now and asking clients to be proactive on hiring decisions in order to play and win at the H-1B Cap game created by the U.S. immigration system.

Unfortunately, it is not a game to employers. It is not a game to highly skilled and educated international workers. The H-1B Cap system fails to serve the needs of U.S. employers in the high-tech, bio-tech, bio-pharma, healthcare and other industries. It contributes to the “brain-drain” the U.S. is experiencing. It fails to create a viable option for international students, a large percentage of whom are educated in a STEM (science, technology, engineering or mathematics) field, who are forced to return home after completing their U.S. education. It limits entrepreneurship within the U.S. It stymies the growth of the U.S. economy. Notwithstanding, until the system changes we must work within its confines.

What is an H-1B Visa?

The H-1B visa is one of most used employment-based visas for temporary workers. It is reserved for individuals sponsored for employment in a “specialty occupation.” In short, a specialty occupation is one for which a Bachelor Degree is the industry norm for hire. The actual definition is a bit more complicated, but the short definition will suffice for this post.

What is the H-1B Season?

The H-1B season follows the federal government’s fiscal year – October 1st through September 30th. As the regulatory scheme allows us to file H-1B visas six months in advance, the H-1B season actually kicks off on April 1st¹ each year. Immigration lawyers around the globe will be readying H-1B petitions over the next month targeting an April 1st filing date.

What is the H-1B Cap? Federal law restricts the number of H-1B visas available each fiscal year to the following:

U.S. Masters Cap    20,000

Regular Cap            65,000

In other words, there is a set aside of 20,000 H-1B visas available each fiscal year for sponsored individuals with a U.S. Master’s or Ph.D. Degree. The Regular Cap sets aside 65,000 H-1B visas for sponsored individuals with a Bachelor Degree² (or higher) regardless of where earned. Once the Master’s Cap is reached, those with a U.S. Master’s Degree or Ph.D. will be considered in the Regular Cap.

The H-1B Cap is a tremendous economic indicator followed closely by immigration lawyers and the employers who use the H-1B system. During booming economic times, the H-1B Cap is often reached on April 1st – the first day of the H-1B season. Here is a look at H-1B Cap results over the past five years:

Fiscal Year       First Day of Season      Fiscal Year Start          Date Cap Reached

2012                  April 1, 2011                   October 1, 2011          November 22, 2011

2011                 April 1, 2010                   October 1, 2010          January 27, 2011

2010                 April 1, 2009                   October 1, 2009          December 22, 2009

2009                 April 1, 2008                  October 1, 2008           April 8, 2008

2008                April 2, 2007                   October 1, 2007          April 3, 2007

As no one can predict with certainty when the cap will be reached, we encourage employers needing new H-1B visas for the 2013 fiscal year to act immediately to ready your H-1B petitions for filing on April 1, 2012 (seeking an October 1, 2012 start date). A petition must be filed with USCIS before it announces that cap has been reached in order for the H-1B visa to be available for the fiscal year. The petition is “counted” against the cap when it is received and accepted for processing by the USCIS, not when it is processed and approved.

Which H-1B Petitions are Exempt from the Cap?

An employer is either a “Cap Subject” or “Cap Exempt.” Most private, for-profit entities are Cap Subject employers. A Cap Exempt employer includes institutions of higher education, governmental research organizations and not-for-profit entities related to or affiliated with either of the foregoing. For example, I represent several K-12 public schools systems, some of which I have been successful classifying as Cap Exempt employers due to their close affiliations with colleges and universities. Whether an employer is Cap Exempt is analyzed on a case-by-case fact basis.

The H-1B visa cap does not apply to the following H-1B filings regardless of whether the employer is Cap Subject or Cap Exempt:

  1. H-1B renewals with the same employer; and
  2. H-1B “transfer” petitions when an H-1B employee is changing jobs from one    

H-1B Cap Subject employer to another Cap Subject employer.

When Should Employers Act?

Again, my team is working with clients now to gather the data and documentation needed for the April 1st filings. I note that it takes a minimum of seven to ten days to prepare and H-1B petition for filing as a pre-filing step involves a filing the U.S. Department of Labor (DOL). The DOL response period is generally seven days. This response period could be ten to fourteen days for employers new to the H-1B process. Thus, employers should factor in seven to fourteen days preparation time into its planning process.

There are quite a few nuances and requirements for the H-1B visa and the H-1B process. The information contained herein is general in nature.