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H-1B Cap Alert Fiscal Year 2014

    Client Alerts
  • February 19, 2013

Starting April 1, 2013, 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, 2013 (Fiscal Year 2014). 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 the current fiscal year (FY2013) ran out in June 2012, well less than three months after the first available filing date. While in prior years following 2008, H-1B numbers had remained available for several months into the filing season, the period of time to file has been getting considerable shorter. In earlier years before 2008 the general H1-B cap had often been exceeded during the first week of filing in April, and USCIS (Immigration) had 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 in order to file cases during the week of April 1, 2013, in the event the H-1B cap is exceeded during the first week. Employers should now consider all H-1B  employment and filing needs for the period between October 2013 through September 2014.

Once the H-1B FY 2014 cap is reached, cap subject employers will not be able to file new H-1B cases until at least April 1, 2014 for an October 1, 2015 start date. This clearly affects foreign students working pursuant to Optional Practical Training (OPT) which expire in 2013 or 2014. Any student whose OPT expires after 4/1/2013 but before 10/1/2013, and who has an H-1B petition filed by an employer and accepted after 4/1/2013 and before the OPT expires, will receive automatic extension of the OPT until 10/1/2013 under the "cap gap" rule. 

We recommend that you contact us as soon as possible to review plans for any potential new H-1B hires you may be considering. Note: All immigration cases are different, so please contact your attorney to discuss any specific, individual case.