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Focus on Regulation

H-1B quota likely to be exhausted on (or shortly after) April 1, 2013

U.S. Citizenship and Immigration Services (“USCIS”) has announced on Friday, March 15, that it expects to receive a large number of H-1B petitions subject to the fiscal year (“FY”) 2014 quota (also known as the “cap”) on April 1, 2013, the first date upon which USCIS will accept such H-1B petitions for FY 2014 (for employment with October 1, 2013 as the effective start date).  The numerical limitation on H-1B petitions for FY 2014 is 65,000 under the “regular” cap (with certain visas specifically set aside for nationals of Chile and Singapore under respective free trade agreements).  In addition, there are 20,000 H-1B visas available for individuals with U.S. master’s degree or higher (the so-called “master’s” cap).  We note that individuals with U.S.-awarded advanced degrees can qualify either under the master’s cap or the regular cap, assuming there is availability.  USCIS anticipates that it may receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher between April 1, 2013, and April 5, 2013. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap has been met.   

Should the number of applications received in the initial five day period (April 1, 2013 – April 5, 2013) exceed these allocated amounts, USCIS will, similar to its practice in the past, use a lottery system to randomly select the petitions that will be processed under the cap (up to the number required to reach the numerical limit under each of the caps).  USCIS will reject petitions that are subject to the cap and are not selected in the lottery system, as well as petitions received after it has the necessary number of petitions needed to meet the cap. This could be the first time since April 2008 that the H-1B cap will require a random drawing/lottery due to high demand for H-1B visas.

USCIS also noted that H-1B cap-subject cases can continue to request “premium processing” (expedited review) services.  However, due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice.  To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013 (even if a specific case is filed on April 1, 2013).  Petitioners may also upgrade a pending H-1B cap-subject petition to premium processing once a receipt notice is issued. All requests for premium processing received between April 1, 2013, and April 14, 2013 will be adjudicated within 15 days from April 15, 2013, when premium processing begins for these cap-subject cases.