FY14 H1B Cap Season: Get an Early Start

The U.S. Citizenship and Immigration Services (USCIS) will start accepting H1B cap-subject filings for fiscal year 2014 (FY14) on Monday, April 1, 2013. While it may seem early to start thinking about April 2013, the Murthy Law Firm has already begun accepting and working on H1B cap-subject cases. Last year’s relatively short cap season has generated earlier inquiries and requests for help with cap cases. We alert employers and individuals who are in need of H1B cap-subject filings that it is time to start preparing for the H1B cap.

Timing: April and October

The H1B cap-subject filings for FY14 can be filed on April 1, 2013. These filings can continue until the H1B cap limit is met. The significance of April 1st is that it is six months in advance of the first day of FY14, which is October 1, 2013. The law allows H1B cases to be filed up to six months before the requested start date for employment. The first allowable date of employment is October 1, 2013, the first day of FY14.

The Murthy Law Firm, therefore, is accepting cap-subject H1B cases months ahead of the earliest possible filing date of April 1, 2013. Although cap-subject cases cannot be filed before April 1st, there is work to be done preparing a good case for filing. All of this work must be done in advance, so that the H1B petition package can be filed as early as permitted under the law. By beginning early, it is possible to avoid some of the rush and panic that inevitably sets in right before April 1st and lasts until the cap is reached.

Cap Will Likely be Reached Earlier for FY14

The H1B cap was reached much earlier than expected in FY13. The FY 13 cap was reached on June 11, 2012; in stark contrast to November 22, 2011, when the FY12 cap was met. It is notable that FY12 even had a shorter cap season than FY11, by approximately two months. These trends are tied to the economy, as well as the rates of denials in other categories, particularly L1B. There is no way to accurately predict the length of the H1B cap season, but the clear trend over the past few years is toward shorter and shorter periods of time to file an H1B cap-subject case.

Advance Planning: Will the Employer Sponsor an H1B?

As MurthyDotCom readers were advised last cap season, employers again should start by identifying their employees who need H1B cap-subject filings. These are often employees working on F-1 Optional Practical Training (OPT) following graduation. It may also include L1B employees who need to change to H1B status due to limitations on the duration of the L1B, as well as L-2 employees working on employment authorization documents (EADs) who may want an independent status. Employers should consider their particular workforce and their needs. Some employers may wish to expand their workforce and may need cap-subject H1B filings for that expansion.

While we recommend that employers examine their workforce with respect to the need for H1B cap filings, foreign nationals should not just wait for their employers to discover the need for this type of case. It is often advisable to approach one’s employer through appropriate channels to set the wheels in motion for the H1B cap-subject filing. Any employee who will not be able to continue employment unless an H1B petition approval is obtained needs to learn early whether his or her employer is interested in extending the employment by sponsoring an H1B petition. If the current employer is unable or unwilling to sponsor the employee for an H1B petition, this allows the employee time consider other alternatives, such as seeking employment with a different employer, before the cap is reached. Approaching one’s employer early may also provide those employers to who are unfamiliar with H1B procedures with enough time research the pros and cons of H1B filing, rather than feeling like they are being pressured.

Understanding the Cap and Which Cases are H1B Cap Subject

The H1B cap can be confusing. There are many cases that both individuals and employers wrongly assume are cap subject. A number of these are clarified in our MurthyDotCom NewsBrief, Shedding Light on Misunderstandings About the H1B Cap.

Cases filed for individuals who have never held H1B status are subject to the cap, unless filed by an H1B cap-exempt employer. Those who are uncertain about whether the H1B cap factors into their immigration strategy should consult with a qualified immigration attorney. As always, the Murthy Law Firm is available to advise individuals or employers in such situations.

Turn to Murthy for H1B Cap Tracking and Information

Each cap season MurthyDotCom provides our readers with timely cap count information and other important cap-related news and guidance. We will to do so again during the FY14 cap season.

Conclusion

Anyone with H1B questions or concerns, or who needs representation in H1B matters, is welcome to consult our attorneys at the Murthy Law Firm. Our dedicated team of professionals focuses their time and energy on a range of H1B cases – from the more straight forward to the very complex – to help increase the chance of a petition approval in a challenging climate.

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