U.S. Citizenship & Immigration Services (“USCIS”) announced that as of April 13, 2012, it has received 20,600 H-1B regular cap cases (toward a cap amount of 65,000 visas) and 9,700 H-1B Master’s Degree Exemption cap cases (toward a cap amount of 20,000 visas). Employers should also be aware that 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements.
This usage far exceeds the number of visas used during a corresponding period in 2011. As of April 8, 2011, USCIS had received 5,900 H-1B regular cap cases and 4,500 H-1B Master’s Degree Exemption cap cases. In 2011, the cap was reached on November 22, 2012.
Thus far during the first two weeks of April 2012, three times the number of H-1B visa petitions have been filed as had been previously filed for a corresponding period in 2011. Based on these calculations, it is expected that the H-1B cap could be reached during the summer months of 2012.
Until USCIS announces that the respective caps have been met, employers can continue to file H-1B temporary worker petitions for foreign nationals requesting an employment start date on or after October 1, 2012.
What is the Master’s Cap Exemption? Some H-1B petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for beneficiaries who have obtained a U.S. master’s degree or higher. Unless otherwise exempt from the cap, petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted toward the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption. Graduates with U.S. master’s degrees or higher virtually get two bites of the apple in securing an H-1B visa number. The availability of H-1B visa numbers presents a great opportunity for employers to meet their hiring needs for the coming year. The H-1B visa is one of the few nonimmigrant visa options available to employers seeking to fill openings in “specialty” occupations. Many foreign national students who were unable to file H-1B visa petitions on April 1, 2011 because they had not yet graduated are now eligible for H-1B sponsorship. We encourage employers to consider their hiring needs and start interviewing potential H-1B candidates and finalizing job offers immediately. Once the H-1B cap is reached, employers will not be able to obtain new H-1Bs until October 1, 2013.
It is important to remember that the cap only applies to new H-1B cases, and not to extensions of H-1B status or a transfer of an H-1B visa from one employer to another. The cap does, however, affect those foreign nationals who are in H-1B status seeking to work for new employers, but who are currently exempt from the cap based on employment with an institution of higher education or not-for-profit or governmental research organization.
If you are considering the hiring of a foreign worker who will need H-1B sponsorship, we encourage you to contact one of our immigration attorneys as soon as possible to review your hiring plans. In the meantime, we will continue to provide you with the latest developments on the H-1B numbers.