Employers wishing to sponsor a first-time H-1B worker should soon begin the petition process. April 1, 2013, is the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B cap-subject petitions for next year’s allotment of visas for foreign national professionals.
Cap-subject H-1B visas become available each year on Oct. 1—and filings with USCIS can be made no sooner than six months in advance. April 1 is the first day filings will be accepted. With the H-1B cap reached in only two months in 2012, it is important that employers pay attention to this date to ensure that any H-1B visas that are needed for Oct. 1, 2013, are filed on April 1, 2013.
“There is a strong likelihood the cap is going to be hit in the first week and that a lottery will be implemented,” said Justin Storch, manager of agency liaison for the American Council on International Personnel. “It’s very important this year for organizations hoping to secure H-1Bs to file their cases on April 1 to ensure they will even have a chance if a lottery is used,” he told SHRM Online.
A limited number of H-1B work visas are available each year. Under the regular H-1B cap, 65,000 H-1B visas are available. An additional 20,000 are available under an exemption for foreign nationals who have graduated from a U.S. college or university with a master’s degree or higher.
The strong demand for new H-1B workers in previous years has caused the available annual allocation of H-1B cap slots to run out soon after the April 1 start date. In fiscal year (FY) 2013 the 65,000 H-1B cap was reached on June 11, 2012. The FY 2013 20,000 master’s H-1B cap was reached even earlier—June 7, 2012. The H-1B cap slots for FY 2014 are expected to run out even sooner than last year as a result of the steadily improving economy.
The H-1B visa is the most popular visa category for employers to quickly obtain work authorization for key foreign national employees and is available for a variety of professional positions, including engineering, biology, computer science, accounting, teaching, sales/marketing and many other professional occupations.
Cases not subject to the H-1B cap include:
- Foreign nationals already counted toward the cap in a previous year that have not been outside the United States subsequently for one year or more.
- Foreign nationals already in H-1B status petitioning to change employers.
- Petitions to extend or amend H-1B status.
- Petitions for H-1B concurrent employment.
- Petitions filed by certain institutions of higher education, governmental research and nonprofit organizations.
- Petitions for Chilean, Singaporean and Australian citizens.
Strong Demand Could Lead to Lottery
If the allotment of regular and master’s cap cases is reached on or immediately after April 1, computer-generated random lotteries may be used.
USCIS conducted lotteries in April 2007 and April 2008 after the FY 2008 and FY 2009 H-1B cap was reached. After these lotteries were conducted, USCIS began notifying applicants who were selected in the lottery process. Under the random lottery system, USCIS first conducts a random lottery of the 20,000 H-1B cases eligible under the master’s cap exemption. Cases that are not selected as one of the 20,000 under the master’s cap exemption are then included in the random lottery for the 65,000 regular allotment.
Top H-1B Users Are Tech Outsourcers
According to USCIS data analyzed by Computerworld magazine, the largest single users of H-1B visas are offshore outsourcers, many of which are based in India or based in the U.S. with most employees located overseas.
This data supports critics’ contentions that H-1B visas undermine American tech workers and that the program shouldn’t be expanded. While many U.S.-based companies support raising the visa cap, like tech giant Microsoft, which ranked 11th on the list of most visa approvals, the largest H-1B visa users are offshore providers, such as N.J.-based Cognizant, which at 9,281 visas in FY 2012 led the list.
India-based Tata, Infosys and Wipro, and Accenture’s IT services operation rounded out the top five for FY 2012.
Roy Maurer is an online editor/manager for SHRM.
Follow him at @SHRMRoy
Senate Bill Calls for Market-Based H-1B Cap, SHRM Online Safety & Security, February 2013
Higher Visa Fees, Penalties Foreseen with Immigration Reform, SHRM Online Legal Issues, January 2013
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