April 16, 2012 –
Monitoring H-1B visa petitions

USCIS continues to accept fiscal year 2013 H-1B petitions

April 2, 2012 marked the first day the United States Citizenship and Immigration Services (“USCIS”) began accepting H-1B petitions filed on behalf of nonimmigrant workers for employment in fiscal year 2013 that begins on October 1, 2012. USCIS has reported that, as of April 9th, it has received approximately 17,400 H-1B petitions counting toward the annual 65,000 quota cap and approximately 8,200 petitions counting toward the 20,000 quotas specifically available above the 65,000 annual quota cap for individuals with advanced degrees.USCIS advised at a recent stakeholders meeting that the number of filings received in the first few days of the FY 2013 H-1B filing season has been almost double the number of filings received by USCIS during the same time for last fiscal year’s filing season.

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.

For several years prior to FY2009 and FY2010, H-1B filings greatly exceeded the statutory quota causing USCIS to invoke a lottery system for allocation of the available quotas. In FY2011, H-1B filings met the statutory quota on January 26, 2011 and in FY 2012, filings reached the statutory cap on November 22, 2011. While 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, the fact that the usage in the first few days of the filing period has been twice that of last year is a signal to employers that they should consider filing H-1B cap-subject petitions as early as possible in the filing cycle.

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 who desire to hire H-1B aliens who may be subject to the statutory quota or who may fall within a cap exemption should consult with immigration counsel as soon as possible to carefully analyze their options.

For more information read the original USCIS announcement or find out more about the H-1B visa program.