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FY2013 H-1B Cap Count: June 1, 2012

East Village Skyline NYC 147055098As of June 1, 2012, USCIS had received 55,600 cap-subject FY2013 H-1B petitions subject to the regular 65,000 cap (for beneficiaries without a US advanced degree), and 18,700 FY2013 H-1B petitions subject to the 20,000 cap exemption for individuals with US advanced degrees. The FY2013 H-1B cap will likely be filled within the next week. 

Employers should file cap-subject FY2013 H-1B petitions as soon as possible for a chance of receiving a FY2013 H-1B number. Unless Congress acts–which is unlikely–cap-subject H-1B visas will not be available again until the following fiscal year FY2014, which begins October 1, 2013.

USCIS began accepting FY2013 H-1B petitions April 2, 2012, and is still accepting cap-subject FY2013 H-1B petitions. FY2013 is the US government fiscal year beginning October 1, 2012, and ending September 30, 2013.

Most employers, except for academic institutions and their affiliates or government research institutions, are subject to the annual H-1B cap. Since H-1B holders who have already been counted against the annual H-1B cap within the last 6 years are not subject to the H-1B cap, individuals who already have an H-1B with an H-1B cap-subject employer may transfer their H-1B to another employer.

However, H-1B holders who have an H-1B with a non cap-subject employer ARE subject to the annual H-1B cap.  For example, if you have an H-1B with a university, and you want to transfer your H-1B to a private employer, you will be subject to the annual cap.  Therefore, your employer should file your H-1B within the H-1B filing “window”–i.e., as close as possible to April 1 of each year (the earliest possible date to file an H-1B before the start of the next fiscal year–October 1 of each year) to avoid filing too late when H-1Bs have already been exhausted for the coming fiscal year.

FY2013 H-1B Cap Updates

As mentioned previously, as FY2013 H-1B filing continues following the April 02, 2012, opening of FY2013 H-1B filing, USCIS will provide regular updates on the processing of FY2013 H-1B petitions that are subject to the annual H-1B cap. When USCIS receives a sufficient number of FY2013 H-1B petitions to meet the annual H-1B cap, they will issue an update advising the public that the FY2013 H-1B cap has been met as of a certain date. This date is known as the “final receipt date.” Note that the date USCIS informs the public that the FY2013 H-1B cap has been reached may differ from the actual final receipt date.

FY2013 H-1B Final Receipt Date and Lottery

If necessary, USCIS may randomly select the number of cap-subject FY2013 H-1B petitions received on the final receipt date that will be considered for final inclusion within the FY2013 H-1B cap. They will reject cap-subject FY2013 H-1B petitions that are not selected in this random lottery, as well as FY2013 H-1B petitions they receive after the final receipt date. Whether or not an H-1B petition is received by the final receipt date will be determined by the date USCIS physically receives the properly filed H-1B petition, not the date that the H-1B petition is postmarked.

FY2013 H-1B Premium Processing

Premium processing of FY2013 H-1B petitions filed during the initial 5-day filing window following the first date to file FY2013 H-1B petitions (April 2, 2012) underwent a 15-day processing period beginning April 9, 2012. For all other FY2013 H-1B petitions filed for premium processing, the processing period begins on the date that the properly filed H-1B petition was physically received at the correct USCIS Service Center.

FY2013 H-1B Cap-Exempt Petitions

H-1B petitions filed by employers who are exempt from the annual H-1B cap, as well as H-1B petitions filed on behalf of current H-1B workers who have been counted previously against the annual H-1B cap within the past six years, will not count toward the FY2013 H-1B cap.

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