H-1B Cap Hit – Applications Subject to Lottery

The “H-1B cap” – or limited number of H-1B visas allowed to be issued – was met on April 5, 2013, 4 days after the earliest filing date became available on April 1, 2013. A lottery will be held for those applications received from April 1 through 5, 2013. Those cases filed after April 5th will be rejected.

It was predicted to be a short H-1B year due to the continuous improvement in the economy over the past year, and thus, demand for more high-skilled foreign labor. Last year the cap was reached in June, and the year before the cap reached in November.

What does this mean for those whose applications were received by April 5th? USCIS announced it will subject ALL cases filed from April 1st thru 5th to a lottery. The agency will conduct the selection process for advanced degree exemption petitions first (20,000). All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process

What does this mean for those who were not able to file by this date? Those persons will not be able to obtain an H-1B visa until the next fiscal year (2014/15), October 1, 2014 and can apply no earlier than April 1, 2014. This will be a long and painful year for those foreign nationals who otherwise would be eligible for an H-1B but for the limited number issued. Such foreign nationals need to maximize their STEM OPT, think of ongoing student status, and entertain other types of work visas such a TN (for Mexicans and Canadians), L-1A, B for intracompany transferees, J-1 and H-3 trainee visas.

There is also the option of working for an H-1B cap exempt organization such as the governmental and non-profit research organizations, or an institution of higher education or an entity affiliated with such an organization, such as many hospitals.

This event continues to underscore the dire need for Congress to increase the H-1B cap levels to something more logical and in tune with the pace of the economy. The cap limit is 65,000 for those with a Bachelor’s degree and 20,000 for those who obtained a Masters or higher in the US for a total of 85,000. Prior to this severe decrease in FY2003, the cap limit was 195,000 per year. In fact, the cap was reached in FY2001 despite the downturn in the economy.

For more information about H-1B options or other options for high-skilled professional foreign workers in Colorado, please contact immigration attorney Catherine Brown at 303-322-2117.



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