U.S. Citizenship and Immigration Services (“USCIS”) announced on April 5 that it had received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (“FY”) 2014. USCIS also announced that it received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced U.S. degree cap. As such, Friday, April 5, was the final receipt date for new cap-subject H-1B petitions requesting an employment start date of October 1, 2013.
The following Monday, April 8, USCIS followed up with an announcement that it received an astounding 124,000 H-1B petitions within the first week of the filing period, including petitions filed under the advanced degree exemption.
As such, as it has done in the past, USCIS deployed a computer-generated random selection process (more commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.
It may be a few weeks before we are advised whether a particular petition has been selected for adjudication. In the past, this was accomplished by USCIS sending the petitioning employer (or its legal representative) a receipt notice (Form I-797) of the filing.
The fact that the cap was reached within a matter of days is evidence of the high level of demand by U.S. employers eager to hire highly skilled foreign workers. By contrast, last year, the H-1B cap was reached in slightly more than two (2) months. The year before that, in 2010, the H-1B cap was not reached for ten (10) months.
Given the exhaustion of H-1B visa numbers for fiscal year 2014, absent new reform legislation, the next time U.S. employers will be eligible to file an H-1B petition under the cap will be April 1, 2014, for a start date of October 2014. As such, employers are left with no choice but to consider alternative visa options for employing qualified foreign-born professionals. While there are a limited number of options available, there are, indeed, viable options for potential hires for whom you cannot (or will not) wait until October 1, 2014 to employ.
Of course, USCIS will continue to accept and process petitions that are otherwise exempt from the cap.
If you have any questions about the H-1B visa cap or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.
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