Starting April 1, 2012, employers may file H-1B temporary (professional) worker petitions for all new workers (that is, workers who are subject to the Congressionally-mandated cap of 65,000 and 20,000 cap exemption for U.S. Master's graduates) requesting an employment start date of October 1, 2012 (Fiscal Year 2013). The H-1B cap will affect all new applicants for H-1B status, either as initial entry or as a change of status. It will also affect change of employer filings by cap-subject employers for those foreign nationals who are currently in H-1B cap-exempt status based on employment with a research institution or affiliated organization. Foreign H-1B nationals currently with a cap-subject employer have already been counted and are therefore not subject to the H-1B cap in order to extend a valid H-1B status or change H-1B employers.

H-1B numbers for this current fiscal year (FY2012) were available to employers filing new H-1B petitions for a period of over seven months and ran out in November 2011. Although over the past couple of years, H-1B numbers have remained available for several months into the filing season, the period of availability has been getting shorter. In earlier years the general H1-B cap has been exceeded during the first week of filing in April, and USCIS devised an internal lottery system for allocating H-1B numbers.

We are therefore recommending that employers start H-1B cap subject cases as soon as possible to file cases during the week of April 1, 2012, in the event the H-1B cap is exceeded during the first week. Employers now consider all H-1B filing needs for October 2012 through September 2013.

Once the H-1B FY 2013 cap is reached, cap subject employers will not be able to file new H-1B cases until at least April 1, 2013 for October 1, 2013 start dates. This clearly affects foreign students working pursuant to Optional Practical Training (OPT) which expire in 2013. Any student whose OPT expires before 10/1/2012, and who has an H-1B petition filed by an employer and accepted after 4/1/2012 and before the OPT expires, will receive automatic extension of the OPT until 10/1/2012 under the "cap gap" rule. Note: All immigration cases are different, so please contact your attorney to discuss any specific, individual case.

Please contact us as soon as possible to review plans for any potential new hires you may be considering.