FY 2014 H1B Cap Filing Season Approaching

We at the Murthy Law Firm wish to remind readers that the H1B cap-filing season for fiscal year (FY) 2014 is drawing near. The U.S. Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H1B petitions on Monday, April 1, 2013. Employers and individuals who have not made appropriate arrangements for needed H1B cap filings are urged to do so without further delay. It is anticipated that the trend toward shorter cap filing seasons will continue, and it therefore has become increasingly important to make the necessary preparations in advance of April 1, 2013.

Trends: Increased Early Filings

As explained in our article, FY14 Cap Season: Get an Early Start (30.Nov.2012), the pattern over the past several years has been shorter cap filing windows. Under current regulations, the USCIS must accept H1B cap-subject cases during the first five business days in April. If the cap is reached or exceeded in the first five days, no more cases can be filed toward the cap until the next fiscal year. If the H1B cap is exceeded in the first five days, the USCIS will conduct a random lottery to select which cases filed in the first five days will be processed. In the event of a lottery, the cases that are not selected will be rejected.  If the H1B cap is not met in the first five days of filing, the USCIS continues to accept such cases until the cap limit is reached.

In FY13, the H1B cap limit was reached on June 11, 2012. It can be confusing to mention FY14 early in the 2013 calendar year.  FY14 begins October 1, 2013 and ends September 30, 2014. There is no way to know, with any certainty, when the FY14 cap will be reached. Our firm is seeing, however, a substantial increase in the requests for cap-subject filings. This may be, in part, a reaction to the events of the prior fiscal year, and a widespread realization that extended cap-filing periods are no longer the norm.

Prepare Now to File Early in April 2013

There is work that must be done in advance if one plans to file an H1B cap-subject case by the beginning of April 2013. One key step in the process is the labor condition application (LCA). All H1B filings must be accompanied by an LCA approved by the U.S. Department of Labor (DOL). The DOL may take as much as seven business days to process the LCA. Of course, the DOL's timeline does not begin until the LCA, with the required information about the employer and position, is submitted to the DOL.

In addition to the LCA, there are other steps to be taken to prepare an H1B case. For example, it may be necessary to obtain an evaluation of the prospective employee's foreign education. H1B cases filed for employees who will be placed at third-party worksites require detailed documentation of the nature of the work and the sponsoring employer's control over the worker.  This is why the Murthy Law Firm began accepting cap-subject cases several months ago, and why we are urging those who need such filings to move forward without further delay.

Employers Need to File H1B Cap-Subject Cases ASAP

Employers who are not clear which of their current employees may need cap-subject H1B filings should reach out for guidance and file all new cap-subject H1B petitions for their employees as early as possible. As explained in the article cited above, the likely candidates within the current workforce include recent graduates working on optional practical training (OPT), as well as L1B employees or others, such as individuals holding L-2 status who are working on employment authorization documents (EADs). Employers should also consider their workforce expansion plans, if it is likely that such plans will include H1B workers who are subject to the cap.

Questions? Consult with the Murthy Law Firm

The time limits for the H1B cap leave little room for error. Individuals and employers with questions about their H1B cases and the H1B cap should seek advice from experienced and knowledgeable attorneys. We at the Murthy Law Firm have many years of experience in preparing H1B cases for filing. Our attorneys are also available to consult with you if you would like a second opinion on your situation.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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