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CLIENT ALERTS

Employers Should Prepare Now for April 1, 2013 Filing Deadline for H-1B Petitions


February 1, 2013 by William A. Stock

Now is the time to evaluate your company’s anticipated hiring needs for H-1B professionals (specifically, those requiring initial H-1B visas) for the 12-month period beginning on October 1, 2013.  That date is when the federal government’s fiscal year begins, and the date on which new H-1B visas become available under the annual cap.  Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, so April 1, 2013 signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached.  The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university.

Our clients who have been involved in the process of hiring a foreign national professional in the past years already know that the H-1B cap for fiscal year 2013 was reached in June 2012.  While demand has been slower in the past several years, and thus the cap has not been reached in the initial filing period, the pace of hiring this year makes our attorneys anticipate the realistic possibility that the pent-up demand for new H-1B workers will result in the new cap being reached within the month of April.  Since there is nothing to be gained by waiting to file an H-1B petition, and everything to lose by failing to file it at the first possible opportunity, we are planning to have all clients’ petitions prepared and ready to file by the end of March.  This year the first business day of April is Monday, April 1, so we plan to send all cap-subject petitions by next-day courier on Friday, March 29 to ensure USCIS acceptance on the first available day.

As in past years, there are some foreign nationals who will not be subject to the H-1B cap.  These include individuals who already have been counted toward the cap in a previous year and have not been outside the U.S. subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap.  All other employers should be aware of the H-1B cap.

As you evaluate your company’s H-1B hiring and transition needs over the next two months, please keep our office appraised of all new hires needing H-1B status prior to October 1, 2014.  Examples would include F-1 students hired with Optional Practical Training that expires before April 1, 2014, or current L-1B nonimmigrants who will have spent five years in that status as of any date before October 1, 2014.  Prompt action is needed to ensure that we can prepare the petition and supporting documents (including credential evaluations if necessary) in an efficient and timely manner.

While we wait for Congress to act on comprehensive immigration reform (which may or may not address H-1B visa shortages), we are advising our clients to proceed as if the 85,000 H-1Bs are all that will be available for fiscal year 2014, and then to continue to advocate with their representatives in Congress for a more flexible, market-based H-1B cap during the year.

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