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FY2013 H-1B Cap Count: May 18, 2012

Midtown NYC 146745226As of May 18, 2012, USCIS had received approximately 42,000 FY2013 H-1B cap-subject petitions subject to the regular 65,000 cap (for beneficiaries without a US advanced degree), and approximately 16,000 FY2013 H-1B petitions subject to the 20,000 cap exemption for individuals with US advanced degrees.

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.

Since H-1B visa numbers are likely to be exhausted by the end of June 2012, we urge employers to file H-1B visas for the coming year as soon as possible.  Once the H-1B cap is reached, cap-subject H-1Bs will not be available again until October 1, 2013.

Most employers, except for academic institutions and their affiliates or government research institutions, are subject to the 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 subjected 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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