|Nicolas J. Watkins, Esq.|
On Monday, June 11, 2012, United States Citizenship and Immigration Services (USCIS) announced that the agency had received enough H-1B visa petitions to fill the annual quota of 65,000 visas for available for USCIS FY 2013 (October 1, 2012 to September 30, 2013). At the same time, USCIS confirmed that the annual quota of 20,000 additional H-1B visas for those prospective specialty occupation workers with U.S. master's degrees had also been allocated as of Friday, June 8, 2012. Employers use the H-1B visa to employ foreign nationals in "specialty occupations," that is, in jobs that involve the theoretical and practical application of a body of highly specialized knowledge and require a baccalaureate or higher degree (or the equivalent achieved through a combination of education, training and/or work experience) as a minimum requirement for the position offered.
What is the H-1B Cap?
The H-1B "cap" refers to the congressionally mandated quota of H-1B visas made available to foreign workers entering the United States in H-1B visa status. On October 1 each year, the start of the fiscal year for USCIS, Congress makes available 65,000 H-1B visas, 6,800 of which are set aside for students from Chile and Singapore. Not including the visas set aside for Chile and Singapore, this leaves 58,200 visas available for the thousands of employers who line up each year to file their H-1B visa petitions. In
addition to this annual quota or cap of 65,000 visas (the "standard cap"), 20,000 more H-1B visas are made available each year for those foreign students holding U.S. master's degrees (the "advanced degree cap"). With the “standard cap” “advanced degree cap” of 65,000, and the of 20,000, there are essentially 85,000 H-1B visas made available each year. Although H-1B visas do not become available until October 1 each year, employers may file H-1B visa petitions to sponsor their prospective H-1B workers up to six months in advance, that is, as early as April 1 for an employment commencement date of October 1.
If 1B Cap Has Been Reached, What Does This Mean?
In a nutshell, now that the H-1B visa quota has been filled for FY 2013, U.S. employers will not be able to file visa petitions for new H-1B workers until April 1 next year and, even then, those H-1B employees will not be permitted to commence their H-1B employment until October 1, 2013, the date when 85,000 new H-1B visas allocated for FY 2014 will become available. This restriction applies only to those H-1B visa petitions subject to the annual H-1B quota or "cap". Therefore, workers not subject to these annual quotas may continue to file H-1B visa petitions; such "cap-exempt" H-1B employment remains unaffected. exempt" H-1B workers include current H-1B "Cap-workers who have already been counted against the H-1B cap for a prior year, those merely changing H-1B employers, those extending or amending their period of H-1B employment, or those H-1B workers employed at an institution of higher education (or a related/affiliated non-profit entity), or at profit or a non-governmental research organization.Although "cap-exempt" H-1B employment is not affected, the limited number of H-1B visas allocated each year does cause a problem. For many individuals, the H-1B visa may be the only visa for which they may qualify, while others will have to explore eligibility for alternative visas such as the L-1 (intracompany transferee) visa, or the E-1 and E-2 (treaty trader or treaty investor) visas, or even TN status (treaty national status for Canadian citizens). Background to the H-1B Cap H-1B visas have been limited in number since the start of FY 1992 following the passage of the Immigration Act of 1990. the quota of 65,000 H-1B visas to be The "dotcom boom" of the 1990s caused reached for the first time in 1997 and again in 1998. Congress responded to employers' increased demand for H-1B workers by temporarily increasing the H-1B cap to 115,000 for FY 1999 and FY 2000, and then to 195,000 for FY 2001, FY 2002 and FY 2003.
The standard H-1B cap reverted back to 65,000 for FY 2004. that year However, the cap was reached less than five months into the fiscal year. And in FY 2005, the cap was again reached, this time on October 1, 2004, the first day of the new fiscal year. Congress responded to this shortage by providing an additional 20,000 visas for those prospective H-1B workers holding U.S. master's degrees. Even so, this turned out to be a temporary fix. In subsequent years, the 1B visas became exhausted more and more quickly each year after the April 1 supply of H-earliest permitted filing date. In FY 2006 the quota was filled by August 10, nearly two months before the affected fiscal year, and in the following year the cap was reached more than four months before the start of FY 2007.
In FY 2008, the cap was reached within 24 hours, while the scenario was pretty much repeated in FY 2009. 1B visas were readily available again in FY 2010 following the onset of the economic slowdown, which had started the year before. That year, it took until December 2009 for the H-quota to be filled. After two more years of availability extending until January 2010 (in FY 2011) and until November last year (FY 2012), the H-1B visa season for FY 2013 ended on June 11, 2012, having lasted a little over two months.
Date H1B Cap Reached Approximate length of time that visas remained available.
FY 2004 February 17, 2004 6 months
FY 2005 October 1, 2004 6 months
FY 2006 August 10, 2005 4 months
FY 2007 May 26, 2006 1 month
FY 2008 April 3, 2007 2 days
FY 2009 April 7, 2008 6 days
FY 2010 December 21, 2009 8 months
FY 2011 January 26, 2011 9 months
FY 2012 November 22, 2011 7 months
FY 2013 June 11, 2012 2 months
This chart is based on data provided in USCIS Press Releases, which have announced annually the receipt of sufficient H-1B visa petitions to meet the congressionally mandated H-1B visa quota.
If You Have Read This Far, What Does All This Really Mean?
What is most clear as a result of USCIS's announcement earlier this week that the H-1B visa cap had been reached is that U.S. employers will not be able to hire a new H-1B worker, who is subject to the cap, until October 1, 2013, more than fifteen months from now! Foreign workers will be scrambling to find analternative visa strategy to allow them to work here. What the USCIS announcement also means is that the economy must be picking up - or, at least, more employers are hiring foreign workers and that trend has continued since 2008. And just as obviously, it seems that 1B visas is not sufficient to meet the demand of U.S. employers the annual quota of H-wanting to hire foreign nationals for positions that require university graduates. If there were sufficient visas available, then the quota of 65,000 (plus the 20,000 for U.S. master's degree holders) would not be fully used before a new block of visas becomes available on October 1 each year. Finally, perhaps the most clear lesson to learn from USCIS's announcement that the H-1B visa season has ended after barely two months is that if you plan on hiring a foreign worker next year, then you should remember that H-1B visas will be used up quickly so you will need to file sooner rather than later - start working on it in January so that the visa petition will be ready for filing on April 1, 2013!
If you have any questions concerning this topic, please contact immigration attorney Nicolas Watkins.
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Miami, FL 33131