Wednesday, April 3, 2013

H-1B Fiscal Year (FY) 2014 Cap Season

On April 1, U.S. Citizenship and Immigration Services began to accept H-1B cap filings for employment in Fiscal Year 2014, which begins October 1, 2013. For FY 2014 there are 85,000 cap slots – 65,000 standard cap numbers and 20,000 additional numbers for holders of U.S. advanced degrees. Projections indicate the cap will be exhausted quickly, but not all H-1B filings are subject.

The cap does not apply to institutions of higher education or their related research centers. It also does not apply to nonprofit research or government research organizations. Therefore Georgia Tech is not subject to the H-1B cap. 

Cap Amounts

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

How USCIS Determines if an H-1B Petition is Subject to the FY 2014 Cap

The information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 17 through 19) determines whether a petition is subject to the 65,000 H-1B numerical limitation (the "cap"). Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master's degree or higher. Unless otherwise exempt from the cap, petitions filed on behalf of beneficiaries who have obtained a U.S. master's degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption.

How to Determine if your H-1B Petition is Subject to the FY 2014 Cap

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Mariana Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories seeking work dates starting in fiscal year (FY) 2013.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count toward the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process FY 2013 petitions filed to:
  • Extend the amount of time a current H-1B worker may remain in the United States.
  • Change the terms of employment for current H-1B workers.
  • Allow current H-1B workers to change employers. 
  • Allow current H-1B workers to work concurrently in a second H-1B position.

When to File an FY 2014 H-1B Cap-Subject Petition

USCIS began accepting H-1B petitions that are subject to the FY 2014 cap on April 1, 2013. You may file an H-1B petition no more than 6 months in advance of the requested start date. H-1B cap petitions received no later than April 5, 2013 have the best chance of being accepted for processing, and employers should do their utmost to file cases so that they are received at USCIS by this date. But employers who are unable to file by April 5 should nonetheless continue to submit their cap petitions. The H-1B cap is likely to be reached in the first five days of the filing, but in the event that it is not, cases filed after April 5 could still secure a cap number.

Find additional details on the USCIS on the H-1B Fiscal Year (FY) 2014 Cap Season website.