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U.S. Citizenship and Immigration Services (USCIS) announced on June 12, 2012 that it has received sufficient H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY) 2013.  On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.  June 11, 2012, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2013. 
Note that petitions must be physically received by USCIS to be considered ‘filed’ as of the final receipt date.  Petitions that were postmarked on the final receipt date are not included in the filed H-1B petitions.  USCIS will reject cap-subject H-1B petitions seeking an employment start date in FY 2013 that arrive at USCIS after June 11, 2012.

As a result, H-1B cap-subject petitions cannot be filed until April 1, 2013, requesting a start date of October 1, 2013.

Jackson & Hertogs will be contacting clients to discuss alternatives for any H-1B cap cases that were not received by USCIS before the cap was reached.

Background. There is an annual limit of 65,000 visas that can be given out to new H-1B nonimmigrants.  The 65,000 visas also include visas that are typically held in reserve for citizens of Singapore and Chile due to free trade agreements with these countries.  The unused portion of the 5,800 visas reserved for citizens of Singapore and Chile each year may be added back towards the 65,000 based on Usage each year.  In addition to this base 65,000, 20,000 visas are considered "exempt" from the cap each year to be awarded to individuals who have graduated from Master’s (or higher) degree programs from accredited U.S. universities.  Therefore, there are roughly 85,000 new H-1B visas available each year.

The H-1B cap typically impacts employers desiring to employ individuals who are in the U.S. in other nonimmigrant categories (F-1, J-1, L-1, etc.) or who are H-1B nonimmigrants with universities or related not for profit research institutes (Stanford, Harvard, etc.) or who are outside the United States.  Individuals who were already counted against the cap in a prior fiscal year and who have not "reset" their six year limitation of stay clock, are exempt from the cap.  Therefore, any current employees that a company has who are already in H-1B status and for whom an extension is required do not have cap issues.

Given that the U.S. government’s fiscal year runs from October 1 through September 30 each year, and H-1B visa petitions cannot be filed more than six months prior to the requested start date, what has typically happened each year is that employers submit the bulk of the H-1B cap petitions to arrive at the USCIS service centers by April 1 of each filing year.  Prior to 2009, more than sufficient numbers of petitions have been received during the first week of April to exhaust number of available H-1B cap visas.  In fact, typically the filed petitions are subjected to a lottery system for adjudication and a large number of filed petitions are rejected based on the cap having been reached.

In terms of how the H-1B cap is reached, if a petition is received at USCIS before the cap is reached, the petition is assigned one of the available numbers.  When USCIS announces that the cap has been reached, the Service will usually state that all petitions received on or by a certain date have been accepted under the cap, or all petitions received on that date will be run through a lottery, to determine which petitions get one of the remaining H-1B visa numbers.  Generally, petitions that are in the mail to USCIS on the day the cap is reached are not accepted, and will be returned unprocessed.  It is unclear if all petitions received by USCIS on June 11, 2012, will receive an H-1B cap number, or if there will be a lottery of the petitions received on that date. This was not addressed in the USCIS announcement.

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