H-1B Cap for Fiscal Year 2014 Has Been Reached

As anticipated, U.S. Citizenship and Immigration Services (USCIS) announced late Friday afternoon that it had received enough H-1B petitions to meet the 65,000 cap for fiscal year 2014 – a fiscal year that does not even start until October 1, 2013. USCIS has also received more than the total 20,000 H-1B petitions reserved for foreign nationals who possess an advanced degree from a U.S. college or university. A computer-generated random selection process (commonly known as the “lottery”) will be used to determine which petitions will be adjudicated. USCIS has indicated that all cap-subject filings received through April 5, 2013 will be subject to random selection, and any petitions not selected will be returned along with the appropriate filing fees. USCIS will reject all cap-subject H-1B petitions for fiscal year 2014 received after Friday, April 5, 2013.

USCIS must now perform data entry for all filings received before it can begin the selection process. USCIS will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. The Service has indicated that the exact day the random selection process will begin is not yet known due to the large number of petitions received.

We will inform clients as soon as we know whether any H-1B petitions filed are assigned one of the available numbers. In the meantime, it is important to remember that the cap only applies to new H-1B cases and not to extensions of H-1B status or a transfer of an H-1B visa from one employer to another. The cap does, however, affect those foreign nationals who are in H-1B status seeking to work for new employers but who are currently exempt from the H-1B cap based on employment with a university or a related or affiliated nonprofit entity, or employment with a nonprofit or governmental research organization.

Employers should contact any of our immigration attorneys with questions or concerns about how these numbers might impact upon the hiring of foreign nationals. Although H-1B visas may no longer be available until October 1, 2014, there may be alternative visa options for a particular candidate that we can assist you with.