On April 1, 2012, employers will be eligible to begin filing new H-1B petitions with the U.S. Citizenship and Immigration Services (“USCIS”) for Fiscal Year 2013, which begins October 1, 2012. The quota (more commonly referred to as the “cap”) for new H-1B petitions is 65,000 per year and, of that number, 6,800 visas are automatically set aside for qualified foreign nationals from Chile and Singapore based on Free Trade Agreements with the United States. An additional 20,000 H-1B visas are available to candidates with a U.S. Master’s Degree.
While last year’s H-1B cap was not reached until late November 2011, there is no telling when this year’s cap will be reached. Therefore, employers should immediately evaluate their hiring needs for this year and identify any current employees or potential hires for whom H-1B sponsorship would be beneficial.
Possible candidates for an H-1B visa will most likely fall under one of the following three categories: (i) current employees or new hires with a nonimmigrant status that will not permit them to work continuously through the effective date of a new H-1B classification, October 1, 2012 (i.e., F-1 students working pursuant to OPT, H-3 trainees, and/or J-1 exchange visitors), (ii) potential candidates who are abroad and have not been previously counted against the H-1B cap; or (iii) those employees for whom a change of status is a necessary component to planning your business’ long-term strategy for keeping that employee in the United States (i.e., TN-1 professionals, L-1B specialized knowledge employees, and/or L-1A managers who do not qualify for permanent residence as multinational managers).
It is important to note that the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B professionals seeking to file an extension of stay, a transfer petition, a petition seeking employment with an institution of higher education, a petition seeking employment with a nonprofit research organization or government research organization, and/or certain petitions for physicians (who previously held J-1 status and have applied for a waiver of the two-year residence requirement based on service in an underserved area) are not subject to the cap. However, should an employer change from an “exempt” employer to a “non-exempt” employer, such change will likely make all such petitions subject to the cap.
Once employers have identified candidates for H-1B sponsorship under the cap, they should consult with immigration counsel to evaluate whether the offered position and the candidate’s credentials will support an H-1B petition. Preparation of these H-1B cases should start as soon as possible so that the petition may be filed on Friday, March 30 for a Monday, April 2 delivery with USCIS.
If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.