February 22, 2012 –
H-1B visa petitions for nonimmigrant workers accepted April 1 until quota met

This is a reminder that April 1, 2012 is the first day the United States Citizenship and Immigration Services (“USCIS”) will begin accepting H-1B petitions filed on behalf of nonimmigrant workers for the 2013 fiscal year (“FY 2013”) that begins on October 1, 2012.

In FY2012, H-1B filings did not exceed the available statutory quota until October 19, 2011, but in some earlier years, prior to the recent recession, the statutory quota was reached much earlier in the H-1B filing cycle, even as early as the first day of the filing cycle.

It is unknown at this time how the number of H-1B filings for FY 2013 will compare to the number of H-1B petitions received by USCIS in the past. With the economy improving, and more hiring taking place, it is possible that the statutory quota will be met much earlier than last fiscal year.

As such, employers who desire to hire H-1B aliens subject to the statutory quota should consult with immigration counsel as soon as possible regarding filing on the first day of the H-1B cycle, or as early in the cycle as feasible.

The H-1B visa classification is for temporary employment of foreign professionals in specialty occupations, including but not limited to, information technology professionals, business analysts, financial managers, engineers, architects, and allied health professionals such as physical therapists, as well as fashion models. There is a yearly statutory cap of 65,000 H-1B approved petitions for the general category, of which 6,800 are reserved for Chile and Singapore Free Trade H-1B visas, resulting in only 58,200 for all other nationalities. There is an additional quota of 20,000 for foreign professionals with advanced degrees (Master’s degrees or higher) from U.S. institutions.

Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until December 31, 2014.

Exemptions from the annual quota cap may apply in instances of: requests for extensions of stay for current H-1B workers; amendments to H-1B petitions requesting a change in the terms of employment for current H-1B workers; and change of employer petitions for individuals already in H-1B status. In addition, petitions for new H-1B employment are not subject to the annual cap if the foreign professional will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. Employers desiring to hire H-1B aliens and that believe a cap exemption may apply should consult with immigration counsel to analyze their situation well before the H-1B cap is reached.