H-1B Update: Filing Date Approaches for Fiscal Year 2014 H-1B Cap Cases

January 1, 2013

By Fredrikson’s Immigration Group

Employers may submit cap-subject H-1B petitions again on April 1, 2013, for the fiscal year (FY) 2014 H-1B program. The numerical limitation, or H1B cap, for FY 2013 was reached on June 11, 2012. New H-1B petitions may be filed under fiscal year 2014 beginning April 1, 2013. Beneficiaries of cap-subject petitions may begin employment no earlier than October 1, 2013. It is difficult to state when the H-1B cap will be reached this year, but in light of it being reached on June 11, 2012, for fiscal year 2013, and the steady economic recovery, we expect the cap numbers to be reached earlier than last year. Therefore, we recommend that employers be prepared to have their petitions delivered to USCIS on April 1, 2013. Due to longer delays in the LCA process, it is best to notify us as soon as possible if you plan to hire a new H-1B employee, so that we may immediately begin preparing these cap-subject cases.

Petitions are only subject to the FY 2014 H1B cap if the beneficiary has not been previously counted against the H cap. Thus, “new” H-1B petitions are cap-subject, but most petitions for extension, change of employer, or concurrent employment are not affected by the H-1B cap. Further, petitions on behalf of foreign nationals employed by institutions of higher education (or related or affiliated nonprofit entities), nonprofit research organizations, or governmental research organizations are not subject to the cap. If an employer wishes to hire an H-1B employee currently employed at such an organization, the new petition would be cap-subject. An attorney should be contacted to evaluate this, as recent changes by USCIS have occurred in defining who is cap exempt and cap subject.

We look forward to helping secure work authorization for your employees in fiscal year 2014. For more information, please contact our Immigration Team at Fredrikson & Byron, P.A.