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USCIS Prepares to Receive H-1B Petitions for Fiscal Year 2014, Expects to Run Out in Early April

file0001146175197.jpgU.S. Citizenship and Immigration Services (USCIS) will begin accepting petitions for H-1B worker visas that are subject to the fiscal year 2014 numerical cap on April 1, 2013. The H-1B worker visa program provides temporary visas for individuals with specialized skills to come to the United States for a specific job. Federal law imposes a cap on the total number of visas the government may issue during each fiscal year. Demand for skilled workers has increased dramatically in recent years, leading to shorter and shorter windows of time in which visas are available. The agency has warned that it expects to hit the cap this year within the first few days of April.

Capped and Exempted Petitions

USCIS may issue 65,000 H-1B visas each fiscal year; this number is known as a “regular cap,” though certain petitions for H-1B visas are exempted from the cap, such as petitions filed by institutions of higher education. Under the “master’s exemption,” the first 20,000 visa petitions filed for workers who hold a U.S. master’s degree or higher are not subject to the regular cap. Legislation establishing free trade agreements with Singapore and Chile sets aside up to 6,800 visas out of the 65,000 cap amount. Any unused visas set aside for the Singapore/Chile H1B1 become available during the following fiscal year.

Most petitions are assessed based upon their filing date. A petition is “filed” on the date that USCIS receives the petition and the correct filing fee, not the postmark date. Petitions received too early (prior to April 1st) are not accepted, and petitioners who file after the regular cap is met, and that do not qualify for an exemption, must try again the following fiscal year.

Expected Backlog

USCIS has announced that, based on feedback it has received from stakeholders, it expects to meet the regular cap by approximately April 5, 2013. The agency may use a lottery to randomly select petitions if it receives more than the regular cap number. It says that it last used a lottery in this manner in April 2008.

Premium Processing

Because of the expected volume of petitions, USCIS is modifying its procedures for premium processing, the service that, for an additional fee, guarantees processing of a petition within fifteen calendar days. Petitioners who want premium processing, and who are either subject to the cap or eligible for the master’s exemption, must submit the I-907 request along with the I-129 petition; However, premium processing will not officially begin until April 15, 2013. Premium processing for other exempt petitions will begin when USCIS receives the petition with the Form I-907 and the proper fees.

The Rant

The H-1B visa system, as we have said before on this immigration law blog, is a mess. The numerical caps and exemptions keep many worthwhile workers out, and the numbers do not reflect any particular business or legal need. As a result, employers devote considerable resources to finding and recruiting talent, and then must devote even more resources to the task of petitioning for their visa to allow the worker to come to (or stay in) the U.S. After countless hours and thousands of dollars, if not more, have been expended, the statutory cap on these visas will likely be reached in less than a week. Not only does this hurt the employers trying to hire the best workers they can find, but it causes many of those workers to look elsewhere, i.e. abroad, for employment.

More Blog Posts:

USCIS Has Allegedly Undercounted H-1B Approvals Since 2008, ImmigRantings, February 28, 2013
Denial Rates for H-1B Visas Rising in U.S. Consulates in India, ImmigRantings, February 19, 2013
Immigration Advocacy Group Alleges that USCIS Targets Small Businesses for H-1B Scrutiny, ImmigRantings, January 5, 2013
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