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Today U.S. Citizenship and Immigration Services (USCIS) announced that it reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS also announced that it received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. The last time this occurred was in 2008. In 2012, the cap was not reached for over 2.5 months. As you know, 65,000 H-1B numbers are available for persons with a bachelor's degree or its equivalent; an additional 20,000 H-1B visa numbers are available for persons holding master's degrees or above granted by a U.S. college or university.

USCIS received approximately 124,000 H-1B petitions between April 1 and April 5, 2013. Today USCIS announced that on April 7, 2013, it used a computer-generated random selection process to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not selected in this process, USCIS will reject and return the petition along with filing fees. USCIS conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected became part of the random selection process for the 65,000 limit.

What does this mean for employers who filed H-1B petitions on April 1, 2013?

It means that your petition has been entered in a "lottery" to determine whether USCIS will adjudicate your case. If it has not been selected in the lottery, it will be returned to your attorney of record with the filing fee checks intact. We may not know whether cases have been accepted for several weeks, as they will be returned via U.S. mail.

For cases that have been selected through this process and were filed using the Premium Processing System, USCIS will begin premium processing these H-1B cap cases on April 15, 2013, not on the date received by USCIS.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who previously have been counted against the cap will not be counted towards the congressionally mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed in order to do the following:

  • extend the amount of time a current H-1B worker may remain in the United States;
  • change the terms of employment for current H-1B workers;
  • allow current H-1B workers to change employers; and
  • allow current H-1B workers to work concurrently in a second H-1B position.

Many employers believe that they should be entitled to employ the best and brightest candidates they can recruit. If your H-1B petition was not selected in the lottery and you feel that the cap of 85,000 H-1B visas interferes with your ability to engage the talent your organization requires, you may want to contact your elected officials to encourage them to support legislation that will help employers hire the professionals they need to be successful and competitive in the global marketplace.

If you have questions, please contact your Vedder Price attorney or Gabrielle M. Buckley at +1 (312) 609 7626.