The H-1B Silly Season is Upon Us!

By Tien-Li Loke Walsh

The H-1B season starts on April 1, 2014 when USCIS begins accepting H-1B visa petitions for FY 2015-2016 (i.e. an October 1, 2014 start-date). Last year, for the first time since 2008, USCIS reached the cap within the filing period between April 1 and April 5. It received approximately 124,000 H-1B petitions during the five-day filing period. Loke Walsh Immigration Law, PC expects USCIS to hit the cap again in 2014.

The usage for the general cap (GC) and the advanced degree cap (ADC) for the past five years has been as follows:

  • FY 2010 – both caps reached December 21, 2009
  • FY 2011– GC reached January 26, 2011; ADC reached December 22, 2010
  • FY 2012 – GC reached November 22, 2011; ADC reached October 19, 2011
  • FY 2013 – GC reached June 11, 2012; ADC cap reached June 7, 2012
  • FY 2014 – both caps reached April 5, 2013

We encourage all interested employers and foreign nationals to contact us immediately to either identify potential H-1B candidates and/or prepare H-1B paperwork for timely filing before the quota is reached. While H-1B petitions will be accepted during the first five business days in April, employers should ideally file their H-1B petitions no later than Monday, March 31st, 2014 (to be delivered on Tuesday, April 1, 2014) to ensure that they capture one of the limited quota visas.

In the event that USCIS receives more than 85,000 H-1B applications during the initial filing period, it will run a computer-generated lottery. USCIS will likely suspend the premium processing service for cap-subject H-1B petitions until after the H-1B lottery is completed.  Petitions for the advanced degree cap are selected first. If the advanced degree cap is reached, higher degree applicants get a second chance as part of the regular cap. If selected, USCIS will then adjudicate the H-1B petition based on the merits of the case. For cap-subject petitions that are not randomly selected, USCIS rejects and returns the petition with filing fees, unless it is found to be a duplicate filing. In 2013, employers were notified of the H-1B lottery results by the end of April/early May.

Please note that the H-1B cap only applies to private industry applications. USCIS continues to accept and process H-1B petitions from cap-exempt organizations such as institutions of higher education, non-profit organizations affiliated with institutions of higher education and non-profit research entities. USCIS also continues to accept and process H-1B extensions, H-1B amendments and H-1B change-of-employer transfer petitions.

#h1b   #immigrationupdates

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