In accordance with Department of Homeland Security (DHS) regulations, U.S. Citizenship and Immigration Services (USCIS) announced on Friday that it will begin accepting H-1B petitions subject to the 2014 Fiscal Year (FY 2014) quota (“H1-B Cap”) on Monday, April 1, 2013. U.S. businesses can use the H‑1B program to petition for foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as, scientists, engineers, and computer programmers. To qualify as a specialty occupation, the position generally must be one for which a U.S. baccalaureate degree or its equivalent is required as a minimum qualification for employment in the position.
FY 2014 starts on October 1, 2014, and therefore all petitions subject to the cap must indicate a start date of between October 1, 2014 and September 31, 2015. However, pursuant to DHS regulations, petitions for H-1B workers cannot be filed earlier than six months prior to the employment start date. Accordingly, petitions filed on April 1, 2014 must indicate an employment start dateof October 1, 2014.
The cap for FY 2014 will be approximately 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H‑1B cap has been met. This date is known as the final receipt date. Cases will be considered accepted on the date that USCIS receives a properly filed petition for which the correct fee has been submitted, and not the date that the petition is postmarked.
If USCIS receives more petitions than it can accept, USCIS will use a lottery system to randomly select the number of petitions required to reach the numerical limit, and will reject those petitions that are not selected, as well as petitions received after the final receipt date. The lottery system was last used in April 2008. However, USCIS has indicated it anticipates receiving petitions in excess of the FY 2014 H-1B cap between April 1, 2013 and April 5, 2013.
An important consideration for employers is that the H-1B petition must include a certified Department of Labor (DOL) Form ETA 9035, Labor Condition Attestation (LCA) at the time of filing the petition. Preparation of this form takes planning and if it has not already been done, it must be done immediately if an employer plans to file an H-1B petition on April 1, 2013.
USCIS has also indicated that due to the historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first 5 business days of the filing season;it has temporarily adjusted its current premium processing practice to facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will delay premium processing for H-1B cap cases until April 15, 2013.
Some H-1B petitions for H-1B employment are exempt from the annual cap. These include:
- Petitions for work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations;
- Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Mariana Islands are exempt from the cap until Dec. 31, 2014;
- Petitions filed on behalf of current H-1B workers who have been counted previously against the cap. These include petitions to:
- Extend the amount of time a current H-1B worker may remain in the United States.
- Change the terms of employment for current H-1B workers.
- Allow current H-1B workers to change employers.
- Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, in order to avoid delays in processing and possible requests for evidence. For assistance you may contact our immigration attorneys at (239) 344-1177.