H1B Cap-Subject Filings Continue until Cap is Reached

The H1B cap for fiscal year 2012 (FY12) continues to have numbers available, as of this writing. The volume of filings for FY12 has been light. The latest U.S. Citizenship and Immigration Services (USCIS) statistics on H1B usage is always available via MurthyDotCom, on the USCIS WebSite. This clarification of common misconceptions, with respect to FY12 cap filings in terms of deadlines and start dates, should prove helpful to many of our readers.

Deadline for USCIS to Accept New H1B Filings: Unknown

In any given year, H1B cap-subject cases can be filed as of April 1st (or the first business day following April 1st, if it falls on a weekend). What is not known is the last day of filing. At a minimum, cases can be filed during the first five business days of April. But, in years when cap filings are fewer, the limit is not reached until well beyond April for an H1B with start date no earlier than October 1st of the same calendar year.

The federal government’s FY12, by which the USCIS is bound, runs from October 1, 2011 to September 30, 2012. Since H1B cases can be filed up to six months prior to the requested employment start date, cap-subject cases for FY12 could first be filed on April 1, 2011. The last date of filing will be when the cap numbers are all used, or on September 30, 2012 – the last day of the fiscal year. Thus, cap filings can continue throughout the fiscal year, as long as there are still cap numbers available for use.

Current H1B Cap Count as of August 26, 2011

At the time of this writing, neither the H1B advanced degree nor the regular cap has been reached. The latest USCIS updated count, as of September 9, 2011, reflects that 16,700 cases have been filed against the 20,000 advanced-degree (or master’s cap) exemptions and 32,200 cases have been counted against the 65,000 regular cap. Thus, there does not appear to be any immediate danger of the cap being reached.

Once the 20,000 advanced-degree cap exemptions are exhausted, the USCIS will simply use the regular cap numbers for any additional cases filed requesting the advanced-degree exemptions. That is, advanced-degree cases will not be rejected once the 20,000 exemptions are gone, if regular H1B cap numbers are still available.

H1B Start Date: Not Always October 1st

October 1, 2011 is the first day of FY12. Thus, many cap-subject cases request an October 1st start date for H1B status and employment. It is possible, however, to request a different start date, as long as it is no more than six months after the date of the H1B filing.

The selection of the start date depends upon a number of factors, including the employer’s needs for the worker and the foreign national beneficiary’s current status. H1B petitions filed for foreign students holding optional practical training (OPT) often consider the expiration of the OPT when establishing a requested H1B start date. For example, if an employee’s OPT expires on February 15, 2012, and employer filing an H1B petition in October 2011 would likely request an H1B start date of February 15th, 2012, so that the transition is seamless between the statuses of F-1 and H1B, and the OPT is utilized as long as possible, so that no H1B time is “wasted” from the generally allowed maximum 6-year H1B timeframe.

Conclusion

Many questions about the H1B cap and filing are answered in the extensive information on MurthyDotCom. Readers may also like to schedule a consultation with one of our knowledgeable attorneys at the Murthy Law Firm. H1B cap issues often are confusing, given the various dates and cap counts involved. We will continue to update our valued MurthyDotCom and MurthyBulletin readers, as the count climbs. But, for now, requests are low and H1B numbers remain available for employers who need to file H1B petitions.

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