Is The H-1B Madness Back?

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USCIS announced that as of May 18,2012, it has receipted approximately 42,000 “general cap” petitions and 16,000 “Masters-cap” petitions. H-1B usage has been surprisingly strong this year in comparison to previous years. In FY 2010 (April 2009), H-1B usage fell dramatically following the economic downturn. This was in comparison to the last round of H-1B madness which occurred in FY 2009 (April 2008), when USCIS received 165,000 H-1B applications in the first five days of the H-1B season! When H-1B usage dropped, the H-1B filing season lasted as follows:

  • FY 2010 (filing date on or after April 1, 2009): H-1B cap reached on December 21, 2009
  • FY 2011 (filing date on or after April 1, 2010): H-1B cap reached January 27, 2011
  • FY 2012 (filing date on or after April 1, 2011): H-1B cap reached November 22, 2011

So, what is happening this year? In the short time since the FY 2013 H-1B season “opened” on April 1, 2012, USCIS has already receipted 42,000 “general-cap” petitions and 16,000 “Masters-cap” petitions. The following is a quick glance at the usage so far:
 

H-1B Fiscal Year (FY) 2013 Cap Season
Date (as of) Regular Cap Masters Exemption
05/18/2012 42,000 16000
05/11/2012 36,700 14,800
05/04/2012 32,500 13,700
04/27/2012 29,200 12,300
04/20/2012 25,000 10,900
04/13/2012 20,600 9,700
04/09/2012 17,400 8,200
 
Based on these statistics, H-1Bs are likely to run out soon. So, if you have any potential candidates, now is the time to apply before H-1B numbers run out. For those H-1B nerds like us, we created an interactive H-1B comparison chart (just for fun!). Just drag the handle (looks like a pause button) to zoom in and out.  The chart illustrates the H-1B trend in the last three years, and it can help you predict the future of this season’s H-1B usage.
 

H-1B General Cap

 

H-1B Masters Cap

 
But, don’t panic just yet! Keep the following in mind:

  • There are still H-1Bs for Chileans and Singaporeans.
  • The H-1B quota does not apply to cap-exempt organizations – anyone who will work for an institute of higher education or a related or affiliated non-profit entity or a non-profit research entity or a government research organization can apply for an H-1B visa at any time of the year. These types of employers are not subject to the cap.
  • Cap-gap” for F-1 students: most F-1s with valid OPT will most likely be covered by the cap-gap provision, so they can apply for their H-1Bs as part of the next fiscal year (file on April 1, 2013 for an October 1, 2013 start date). By filing a timely-filed H-1B application on or after April 1, 2013 and before the OPT expiration date, the F-1’s status and employment authorization will be automatically extended until September 30, 2013. “Cap-gap” ensures that there will be no “gap” in F-1 status or OPT employment authorization.
  • H-1B Change-of-employer petitions for private industry jobs are not impacted: if someone has been counted towards a previous year’s H-1B quota and is changing jobs, an employer can file the H-1B “transfer” at any time of the year. The H-1B employee is not subject to the H-1B cap again. However, if someone is transferring from a cap-exempt organization into private industry, s/he must be counted towards the cap and will be subject to the quota.
  • If someone has had a private industry H-1B in the past, but is in a different nonimmigrant status (e.g. H-1B changed status to F-1 to get an MBA), s/he has been counted towards a previous year’s H-1B quota.  That person may change status back to H-1B and is not subject to the H-1B cap. An employer may file an H-1B petition for the remainder of time for that person at any time of the year.
  • H-1B Extensions:  The H-1B cap does not apply to extensions.

 
Based on the dwindling H-1B numbers, it’s time to start looking at other visa options:

  • FIVE lucky countries have free-trade agreements with the United States: Candidates from Australia (E-3), Canada (TN NAFTA), Mexico (TN NAFTA), Chile (H-1B1) and Singapore (H-1B1) may have alternative visa options based on these free trade agreements.
  • Professionals working in the arts, motion pictures and television and entertainment industries may qualify for an O or P visa (e.g. VFX artists, graphic designers, architects, animators, technical directors, fashion designers, art directors, creative directors, curators, chefs, industrial designers, journalists, writers, producers, industrial designers, etc.).
  • Scientists and researchers may qualify for J or O visas.
  • Athletes may qualify for an O or P visa.
  • Entrepreneurs and investors may qualify for an E-1 or E-2 visa.
  • Interns and trainees may qualify for J-1s or H-3 visas.
  • Multinational executives, managers and specialized knowledge professionals working for global companies may qualify for L-1 visas.
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