The annual H-1B cap season for U.S. companies (other than institutions of higher education and non-profit research institutions) will be opening in less than two months, on April 1, 2013!  Experts are predicting that this season will be the shortest since the start of the 2008 recession.  This means that there will likely only be a few weeks, or less, during which private industry employers are able to file H-1B visa petitions for employment start dates on or after October 1, 2013 when the new Fiscal Year (FY) begins.

As background, each fiscal year, 65,000 H-1B visas become available for what is known as the “Regular Cap” and 20,000 become available for what is known as the “Master’s Cap.”  Foreign nationals holding a U.S. Master’s degree or higher fall within the Master’s Cap while all others fall within the Regular Cap.  The earliest date a company can file an H-1B visa petition on behalf of a potential employee is six months before the start of the fiscal year, or April 1st (provided that it falls on a weekday).

This H-1B season will likely be the shortest since FY 2009, when 165,000 H-1B petitions were filed within a five-day period at the beginning of April 2008, and the U.S. Citizenship and Immigration Services (USCIS) conducted a lottery to select the petitions that would be awarded an H-1B visa number for that year.  As an immediate result of the 2008 recession, the demand for H-1B visas decreased dramatically; consequently, H-1B cap seasons have been longer in recent years.  For example, for FY 2013, the cap was reached on June 11, 2012.  However, as the U.S. economy continues to recover and demand for new hires continues to rise, we expect this year’s H-1B cap to be reached within the first few weeks, if not the first week.

We strongly urge private industry employers who wish to secure a FY 2014 H-1B cap number to file their petitions no later than April 1, 2013 or risk having to wait more than 18 months, until October 1, 2014, before new nonimmigrant professional workers can be hired pursuant to H-1B visa status.  In addition, part of the H-1B process includes filing a Labor Condition Application (LCA) with the Department of Labor, which must be certified prior to filing the H-1B visa petition with the USCIS.  It is currently taking 7 days or more for DOL to certify LCAs.  Therefore, we encourage companies not to wait until the last minute to make hiring decisions for foreign nationals who will need H-1B sponsorship.

For questions or assistance with the H-1B visa process, please contact our office immediately at info@ornerobrien.com.