FY13 H1B Cap Season Has Begun!

The fiscal year 2013 (FY13) H1B cap-filing season began this week. April 2, 2012 was the first day for such filings at the U.S. Citizenship and Immigration Services (USCIS). Readers affected by this should regularly check MurthyDotCom and the MurthyBulletin as your reliable source of information on the H1B cap. The Nonimmigrant Department at the Murthy Law Firm is currently helping many clients with H1B cap filings, and will continue to accept cap-subject H1B cases throughout the cap season. As of this writing, the USCIS has not posted a cap count. However, they have indicated that the rate of filings is significantly higher than in FY12.

Employment Start Date: October 1, 2012

The earliest allowable start date for employment on a cap-subject H1B petition is October 1, 2012, which is the first day of the fiscal year. While cases can be filed up to six months in advance of this date, the validity date cannot be prior to October 1st. Employment before October 1st, based upon such a filing, is not permissible even if the case is approved earlier. Many of these cases will be approved at least several months prior to October 1st, but the validity dates are always clearly stated on the approval.

File Timely and at the Earliest Opportunity

The USCIS will accept cap-subject H1B petitions until there are no more cap numbers. However, it is impossible to predict, with any level of precision, when the cap will be reached. The FY12 cap was reached on November 22, 2011. While it would be surprising if the cap limit was reached very early in the filing season, there are indications that improvements in the economy will lead to a higher volume of filing than in FY12. In a teleconference held April 5, 2012, the USCIS reported that the filings in the first three days of the cap season were more than double the number of such filings received in the same timeframe in FY12.

As MurthyDotCom and MurthyBulletin readers previously have been advised, employers should take time to identify current employees for whom a cap-subject H1B petition is needed for continued employment. These may be students working on OPT, or L1B or L-2 workers. Employers should also take the cap timing into consideration if they are planning to hire additional employees in the near future.

Tracking H1B Cap Filings

The rate of cap usage and the current cap count are important to many of our clients at the Murthy Law Firm. We therefore closely monitor these matters and enable our readers to keep track of the cap each year, with timely, updated cap-count information and other valuable, strategic information to equip them in their planning.

Do I Need an H1B Cap Number?

The workings of the H1B cap can be somewhat confusing. One may wrongly assume that a cap number is required for an H1B case, particularly if a prior H1B has expired or been denied. The information in our March 26, 2010 NewsBrief, Shedding Light on Misunderstandings About the H1B Cap, helps to answer many questions on this topic. If the matter is still not clear, individuals may choose to schedule an appointment to consult with one of our attorneys.

Conclusion

Each cap season brings with it some surprises. In FY12, the cap was reached two months earlier than in the previous fiscal year. The cap count was fairly low early in the season, but the pace increased rapidly at the end. For FY13, the USCIS has reported receipt of far more cases in the first few days than in FY12. There is no way to know if the filings will continue at an accelerated pace. At the Murthy Law Firm, we will continue to guide our valued readers through the FY13 season. Watch MurthyDotCom for regular updates and information on the H1B cap.

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