File those H-1Bs Now

By Attorneys Robert L. Reeves and Joseph I. Elias

The immigration community is preparing itself for the exhaustion of the H-1B cap.    The United States Citizenship and Immigration Services’ (USCIS) most recent count shows that as of April 13, 2012 approximately 20,600 H-1B cap-subject petitions were received out of the 65,000 available visa numbers.  Of the 20,000 separate allotment of H-1B visas for workers with advanced degrees, 9,700 have already been accepted. Each week larger numbers of H-1B petitions are being filed with USCIS. At this rate, many expect H-1B visa numbers will be exhausted by the end of May. 

While this is a promising signal that the economy is heating up, employers and H-1B workers will have to scramble for the last remaining visa numbers until Congress acts to increase the quota. Since the quota is expected to be reached fairly soon, 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 end of May.