H-1B Cap Season
January 20th, 2014 by SRW Lawyers
The start of a new calendar year means that it is H-1B cap filing season once again. Each U.S. government fiscal year (October 1st to September 30th), new H-1B petitions are subject to an annual cap of 65,000 with an additional 20,000 allotted to U.S. advanced degree individuals.
Companies need to evaluate their anticipated hiring needs for H-1B professionals, specifically those requiring initial H-1B status. This is particularly true for any current employees working under Optional Practical Training (OPT). These H-1B cap cases will be filed on April 1, 2014 requesting a start date of October 1, 2014, so now is the time to start planning.
Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, so April 1st signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (Master’s or higher) from a U.S. university.
The H-1B cap for fiscal year 2014 was reached right away in April ’13. In fact, USCIS received more filings than H-1B numbers available and a lottery was conducted. Therefore, some H-1B filings were unfortunately rejected under the lottery process.
The demand for new H-1B workers could result in the new cap being reached right away in April again this year. There is also the possibility that the volume of filings will require another lottery process.
*** As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.
SRW recommends that clients keep us apprised of all new hires needing H-1B status. Examples would include F-1 students hired with Optional Practical Training (OPT) or current L-1B nonimmigrants who will have spent five years in that status as of any date before October 1, 2015.
Please contact us anytime to discuss a potential H-1B cap filing.
