Clarity and Strength in Immigration Law

Prediction for H-1B Cap FY 2013

H-1B filing season is upon us! There is an annual limit of 65,000 H-1B visas available every year, with an additional 20,000 visas available for US master’s degree holders. Note that this cap only applies to new cases; not to H-1B transfers or extensions.

The first day an employer can file the H-1B petition for the new cap is April 1 of each year. That is, employers can file an H-1B petition for the FY 2013 H-1B cap on April 1, 2012 and the first date the H-1B employee can start working in H-1B status, assuming the petition is approved, is October 1, 2012. So the question is when to file the H-1B petition. There are several factors to consider, depending on the specific details of each case, and depending on the applicant’s and the employer’s needs and goals. So before deciding when to file, you should speak with an experienced business   immigration attorney. Here are some general points to consider:

  1. Beat the cap! In recent years, the H-1B cap has not been met until the end of the calendar year, or the beginning of the following year. For example, this past year, the H-1B cap was met the week of Thanksgiving. The year before that it was not met until January. So based on recent trends, you may think that you have plenty of time to file. That may be true – it’s impossible to predict the filing volume with 100% accuracy. However, we should also consider that in recent years, the economy has been in a recession and very slowly recovering from recession, perhaps meaning that fewer employers needed fewer H-1B workers. That could partially explain why the H-1B cap lasted longer. The economy is (supposedly) on the upswing now, which could mean that more employers will be filing more H-1B petitions. What does this mean? You may want to consider filing the H-1B petition sooner rather than later. Remember, the closer to April 1 that you file (on or after April 1), the better your chances of being accepted in the H-1B cap.
  2. End client letters: There are other considerations as well, though. Just because the petition is filed in time to make the cap does not necessarily mean that it will be approved. There are various requirements to meet for the H-1B classification, but a hot issue at USCIS is the employer-employee relationship. USCIS officers want to make sure the petitioner filing the case is the actual employer who will control the employment of the H-1B employee. To document this for many consulting professionals (such as IT professionals) and other professionals who will work at a third-part site, the “end client letter,” or letter from the ultimate client site, can be tremendously important. However, many H-1B employers find it difficult if not impossible to obtain an end client letter for a consultant who will show up to work in six months or more. If you are filing a petition that may require an end client letter, it’s important to strategize carefully with your immigration attorney to increase the chances of a successful filing.
  3. US Master’s Degrees: The US master’s degree cap has been met before the “normal” cap of 65,000 the past few years. This may suggest that the types of positions being filled with H-1B workers are more complex, requiring at least a master’s degree. Keep in mind that even if the H-1B beneficiary holds a US master’s degree and that cap is met, he/she can still file in the normal quota, assuming it is still open. The point here is to remember that in recent years, this cap has been met first, and therefore has not served as a “fall back” that fills later, as it did several years ago.   

Conclusion: No one can predict with 100% certainty when the H-1B cap will be met this year. While it is wise to file as close to April 1st as possible to make sure that you meet the cap, it is also critical that you file the petition with all the documentation and evidence that is required for a successful filing. Remember, you should consult with an experienced business immigration attorney before taking or refraining from taking any action. The above information is for informational purposes only.