As of April 9, 2012, the USCIS received a total of 25,600 cap-subject H-1B petitions for employment beginning October 1, 2012. This is double the petitions it received for the entire month of April last year.
Some 17,400 of these filed petitions are subject to the regular cap and 8,200 are advanced degree petitions. Under the law, a maximum of 65,000 H-1B petitions are allowed to be filed each fiscal year. There is a separate 20,000 cap for petitions for individuals with a master’s degree or higher from a U.S. university.
This fast pace of H-1B filing is viewed by many as a sign of an improving economy. The H-1B visa is used to employ workers in specialty occupations, such as teachers, therapists, accountants, engineers and computer programmers.
While the demand for H-1B numbers is unpredictable, it can be said that the demand fluctuates with the economy. H-1B demand dropped in the last few years as the economy slowed down.
To illustrate, for fiscal year 2008 the 65,000 cap was reached on the first day of filing or on April 2, 2007. The next fiscal year, it took one week or until April 7, 2008 for the cap to be reached. For fiscal years 2010, 2011 and 2012, the cap remained open until December 21, 2009, January 26, 2011, and November 22, 2011, respectively.
In this year’s first week of filing (April 2 to April 6), the USCIS received more than 22,000 petitions. Last fiscal year, the first week of filing saw a total of 10,400 petitions.
If employers continue filing cap-subject H-1B petitions at this rate, there is no doubt that the quota will be filled very soon, perhaps before the end of summer.
In case the USCIS receives applications that exceed the numerical cap, it will select at random the number of petitions required to reach the cap from the pool of petitions received on the final receipt date. Cap-subject petitions that were received but not selected in this “H-1B lottery” would be rejected, along with those received after the final receipt date.
Not all H-1B petitions are subject to the numerical limits. Among those exempt are petitions for H-1B workers employed by institutions of higher education or a related or affiliated nonprofit organization and nonprofit research organizations.
Also excluded from the cap are individuals who have been counted previously against the cap within the last 6 years. This includes petitions extending the H-1B employment of current H-1B workers, changing the terms of employment for current H-1B workers, transferring employment from one cap-subject H-1B employer to another H-1B employer, and allowing current H-1B workers to work concurrently in a second H-1B petition.
Preparatory to the actual filing with the USCIS, the H-1B employer must obtain a certified labor condition application (LCA) from the Department of Labor before filing the petition. It must also have documentary evidence of the beneficiary’s educational background and work experience to make him/her eligible for H-1B classification.
Students on optional practical training (OPT) are eligible for continued work authorization, even after their OPT ends and before their H-1B employment begins, if they benefit from the so-called “cap gap rule”. Qualified students who are beneficiaries of timely-filed H-1B petitions requesting change of status to H-1B automatically get an extension of their “duration of status” and OPT employment authorization until October 1st.
Given the high demand for the H-1B cap, employers who currently have or are planning to hire employees who need H-1B sponsorship must initiate the H-1B petition process as soon as possible.