H-1B Cap Reached for Fiscal Year 2013


[authors: Lance Director Nagel, Lisa Stephanian Burton, Eleanor Pelta, A. James Vázquez-Azpiri, and Eric S. Bord]

Candidates who will require H-1B sponsorship and are subject to the cap cannot commence employment in H-1B status until October 1, 2013; employers should begin planning for the 2014 fiscal year.

U.S. Citizenship and Immigration Services (USCIS) has announced that the 2013 fiscal year H-1B cap has been reached and that all cap-subject H-1B petitions received on or after June 12, 2012, will be rejected. The 20,000 H-1B cap for holders of advanced U.S. degrees was reached on June 7, 2012.

H-1B petitions filed for those who have previously held H-1B status in the last six years, including requests for an extension of stay or a change of employer, are not subject to the cap. Petitions for those employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or governmental research organization, are also exempt from the annual cap. H-1B1 visa numbers are still available for nationals of Chile and Singapore.

USCIS will begin accepting H-1B petitions for its 2014 fiscal year on April 1, 2013, for employment commencing on October 1, 2013 or later.

What Should Employers Do?

Employers should immediately inform their recruiters that candidates who will require H-1B sponsorship and are subject to the cap cannot commence employment in H-1B status until October 1, 2013, although other visa options may be available.

Employers should plan to file H-1B petitions to be received by USCIS on or after April 1, 2013, on behalf of the following categories of foreign nationals:

  • Recent graduates employed pursuant to F-1 optional practical training to ensure continued employment eligibility after expiration of their employment authorization documents.
  • Employees in the United States working in another nonimmigrant status and otherwise ineligible for continued authorization after October 1, 2013.
  • Candidates abroad who are subject to the annual H-1B limit and ineligible for another type of work-authorized status in the United States.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morgan Lewis | Attorney Advertising

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