File those H-1Bs Now

By Robert L. Reeves, Nancy E. Miller and Joseph I. Elias

On April 1, 2013, employers may begin filing H-1B petitions for specialized knowledge professionals. Approved petitions will allow H-1B workers to begin employment on October 1, 2013.  There are only 65,000 available visa numbers for H-1Bs, 20,000 of which are allotted to workers who obtained advanced degrees in the US. Last year the H-1B cap was exhausted in less than 3 months, the year before that in 7 months, and the year before that in 9 months. 

While these are promising signals that the economy is heating up, employers and H-1B workers will have to scramble for this year’s visa numbers until Congress acts to increase the quota. We anticipate the quote will be exhausted within the first two weeks of April this year. Since the quota is expected to be quickly reached, H-1B petition preparations should be their final stages. Those people looking for petitioners should intensify their job search right now to ensure sufficient time for an H-1B petition to be prepared for filing before the end of the year.

H-1B petitions cannot be prepared and filed overnight. The H-1B preparation process involves obtaining a labor condition application (LCA) from the US Department of Labor prior to filing the petition. This can take from 5 to 10 business days to process further delaying the filing of an H-1B petition. It is therefore of the utmost importance that H-1B petition preparations be started as soon as possible to ensure filing before the visa quota is met.
Below are some frequently asked questions we have received about the H-1B cap.

What does it mean when the H-1B cap is reached?

This means that if an employer is petitioning to change your status to H-1B (for example from student or tourist status to H-1B), and the petition is received after the cap is met, the change of status cannot be granted. 

I am in H-1B status now and I have filed an extension or I will be filing an extension.  Will I be in danger of missing the cap?  Will I go out of status?

No. The H-1B cap only applies to new H-1B petitions. If an employee is already in H-1B status and is being petitioned by the same employer or even a new employer, that employee is typically not subject to the cap. 

I am not in H-1B status now. There is an employer who is willing to sponsor me.  What should I do with the cap end approaching?

You should begin processing the H-1B petition as soon as possible. The longer you delay, the more likely it is that you won’t get a visa number. 

Those who require H-1B petitions must coordinate with their immigration lawyers right now to ensure that they are on track for an early filing.  In all likelihood, there will be no opportunity for a filing after the second or third week of April.