H-1B’s Still Available!

Contributed by Jacqueline Lentini McCullough

The H-1B visa category is used by employers hiring a foreign national in a professional level position (“specialty occupation”) requiring at least a Bachelor’s degree or the equivalent.  The U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions on April 1, 2012, with a start date of October 1, 2012 (FY 2013).  There is an annual cap of 65,000 new H-1B petitions permitted per fiscal year, with an additional 20,000 H-1B’s available for foreign nationals who have earned a U.S. Master’s degree or higher, who are exempt from the H-1B cap. As of May 11, 2012, USCIS had receipted 36,700 H-1B petitions against the 65,000 cap, and 14,800 H-1B petitions for aliens with advanced degrees against the 20,000 Master’s cap.

While last year the H-1B cap was not reached until just before Thanksgiving, it is anticipated that the quota will be reached earlier this year given the cautious signs of an economic recovery. Consequently, it is advisable to file an H-1B petition as soon as possible.  There is even talk that the cap will be reached by the end of this month! A delaying factor in filing the H-1B petition is the first step of the process, the Labor Condition Application (LCA) filed with the Department of Labor (DOL). Typically, it takes approximately five to seven days for an LCA to be certified, and the LCA must be certified before filing the H-1B petition with USCIS.

Petitions for new H-1B employment are exempt from the annual cap if the foreign national will work at an institution of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. Typically, H-1B petitions are filed for foreign nationals hired from abroad, or for F-1 and/or J-1 students who are currently working in the U.S. pursuant to student status work authorization.

UPDATE: On June 11th, the H-1B cap was reached for fiscal year 2013.