On April 1, 2013, employers will be permitted to submit new H-1B
petitions to U.S. Citizenship and Immigration Services
("USCIS") for Fiscal Year 2014. As in previous years,
April 1 is the earliest date that employers may submit new
"cap subject" petitions to USCIS, and October 1, 2013, is
the earliest date that a foreign worker may commence employment
under a "cap subject" petition. Employers that anticipate
the need to file new "cap subject" H-1B petitions should
be prepared to file the H-1B petition with USCIS no later than
April 1, 2013.
The H-1B cap refers to the annual numerical limitations set by
Congress for H-1B non-immigrant classification. The H-1B cap
controls the number of foreign nationals who can be issued a visa
in a given fiscal year. The H-1B cap also controls the number of
foreign nationals already in the United States who may be
authorized to change their status to a cap-subject
classification.
The current H-1B cap is set at 65,000, of which up to 6,800 H-1B
visas are set aside each fiscal year for nationals of Chile and
Singapore. In addition, the H-1B Visa Reform Act of 2004 allocates
an additional 20,000 new H-1B visas for foreign workers with a
Master's or higher level degree from a U.S. academic
institution.
Not all H-1B non-immigrants are subject to the H-1B cap. The H-1B
cap generally does not apply to persons who have already been
previously counted against the cap and/or are seeking to extend
their stay in H-1B status or requesting concurrent employment.
Further, H-1B non-immigrants are exempt from the cap if they are
employed by, or have received an offer of employment from,
institutions of higher education or a related or affiliated
nonprofit entity, as well as nonprofit research organizations or a
governmental research organizations. However, if an employer wishes
to hire an H-1B employee who is currently employed at such an
entity, the new petition would be subject to the H-1B cap. Lastly,
physicians who have been approved for a Conrad 30 waiver of the
two-year foreign residence requirement based on work in a medically
underserved area are also exempt from the H-1B cap.
We anticipate that the demand for H-1Bs will increase this year. In
light of the anticipated demand and because of the timing issues
created by the U.S. Department of Labor's iCERT system for
Labor Condition Applications, employers should identify early which
current and/or prospective employees may benefit from an H-1B
petition and take the necessary steps to prepare and file their
H-1B petitions no later than April 1, 2013.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
