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The H-1B Season Begins April 1, 2013 – Immigration Lawyer New York
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The H-1B Season Begins April 1, 2013

By Michael H. Markovitch, Esq. on February, 04, 2013

Previous statistics for H-1B cases show that planning in advance of April 1st for the H-1B visa is the key to actually being one of the 65,000 successful H-1B visa winners.


It is that time of year again! April 1, 2013 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (DOL) for Labor Condition Applications (LCA) and H-1B visa petitionsfor employment in the fiscal 2013-2014 year (FY 2013). Our advice to H-1B employers continues to be that they need to think about filing H-1B petitions on (or very close to the) April 1st deadline for new and existing employees (usually international students in Optional Practical Training [OPT]) who will be eligible for first-time H-1B visas to begin their employment on or after October 1st, 2013


By way of background, each Fiscal Year (FY), Congress mandated an annual cap of 65,000 H-1B visas for "professional and specialty occupation workers" who possess the equivalence of a U.S. Bachelor's Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the U.S. Master's Degree or other advanced degrees from U.S.Colleges or Universities.


Some cases are NOT subject to the cap. For example, Institutions of Higher Education and Government Research Organizations are H-1B Cap exempt organizations. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap are also not included in the annual cap. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas are available exclusively to Chile and Singapore Nationals. The Singapore/Chile numbers reduce the total allotment of H-1B visas available each fiscal year to 58,200.


In 2008, there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B during their OPT. At that time, a regulation was promulgated that provided "cap-gap" relief for F-1 students with approved H-1B petitions if the H-1B was filed while the student was still in a period of approved work authorization. In other words, F-1 student visa holders who received work authorization in OPT were permitted to extend the authorized work authorization and period of stay until October 1st as long as they have received an approved H-1B visa prior to the expiration of their OPT.


Also, many Science, Technology, Engineering, and Mathematics (STEM) students continue to use the STEM extension as a way to get two (2) bites at the apple and to obtain the additional time they need to petition in a subsequent H-1B cycle. To get the STEM extensions, an employer needs to be enrolled in E-Verify. Now E-Verify allows the public to view which are and which are not E-Verify employers.


In the past, the H-1B filing period lasted for several months. This past year, the H-1B allocation went faster. There have been periods in the past when the H-1B allotment was actually exhausted within three (3) days of the H-1B visas becoming available on April 1st. This required the USCIS to conduct a "lottery". It is likely that the demand for H-1B visas this fiscal year beginning on April 1, 2013, may be greater than it was for last year. We keep hearing that "economic recovery" continues in 2013. For this reason, it is strongly advisable that H-1B employers consider filing on April 1st, 2013, or as close to April 1st, as possible.

Tags:  H1B Visa

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