FY12 H1B Cap Reached on November 22, 2011

As previously announced to MurthyDotCom and MurthyBulletin readers, the H1B cap for fiscal year 2012 (FY12) was reached November 22, 2011. Explained here is the process for cases filed on or before November 22, 2011, as well as procedures for initiating H1B cap cases for FY13.

USCIS Not Holding H1B Lottery this Year

The U.S. Citizenship and Immigration Services (USCIS) will not be holding a lottery of the case filings made on November 22, 2011, the last day in the cap season, as readers were informed in our NewsFlash, No H1B Lottery in FY 2012 (02.Dec.2011). Typically, a random lottery has been necessary due to the receipt of filings on the final day that were in excess of the remaining H1B numbers. With no need for an H1B cap lottery, the USCIS will be accepting and processing all cases that were properly filed on or before November 22, 2011. Previously filed and pending H1B cap-subject cases will also be reviewed and adjudicated.

All H1Bs Must Have Been Properly Filed to be Processed

It is necessary that cap-subject H1B cases received by the USCIS on or before November 22, 2011 have been properly filed in order to be accepted, reviewed, and adjudicated. The USCIS will process these cases through to approval or denial, as long as each H1B petition satisfies the basic filing requirements. These requirements include having all the correct forms and filing fees, proper signatures, and reaching the USCIS at the correct location on or before November 22, 2011, the last filing date. All H1B cases must be supported by a U.S. Department of Labor (DOL) approved labor condition application (LCA) with proper validity dates.

When is H1B Petition Considered Filed by USCIS?

Under USCIS policy guidelines for H1B petitions, filed means physically received by the USCIS. It is not sufficient to have mailed or otherwise transmitted a case on or before November 22, 2011, if the H1B petition did not actually reach the USCIS by that date.

H1B Cap Reached Earlier than in FY11

The rate of filing increased abruptly toward the end of the FY12 cap season. This caught some petitioners a bit off guard, expecting a cap filing season that would have extended more, as experienced in the prior fiscal year. There are, therefore, individuals for whom H1B cases were filed too late or not at all.

Possible Reasons the H1B Cap Was Met Earlier

The FY12 cap season ended almost two months earlier than the FY11 cap season. The reason for this is not clear, but generally the usage of H1B cap numbers is tied to the economy as well as USCIS policies. The USCIS initiated a major change in policy in January 2010, which made it far more difficult to obtain H1B approvals for IT consulting positions. This created additional hurdles for H1B filings that resulted in higher rates of denials, and some general reluctance to initiate filings.

While the January 2010 memorandum, which was on employer-employee relationships, continues to play a significant role in H1B adjudications, it is no longer new or unexpected and most employers have made the necessary changes to their practices in accordance with the memo. This may account for more cases having been filed that were subject to the H1B cap much earlier in FY12.

Options If You Missed the Filing Deadline

Those who missed filing their petitions in time to be included in the FY12 cap must consider their status options and strategies if they plan to remain in the United States. Students with OPT may have to review the rules regarding cap-gap coverage and try to have their employers time any future H1B filings accordingly. Other individuals may have to remain in or change to dependent nonimmigrant statuses, if they have that option available.

FY13: Filing Opens April 1, 2012

As the FY12 H1B cap season has ended, it is time to prepare and plan for FY13. H1B cap case filings for FY13 will be accepted beginning Monday, April 2, 2012. This is because cases can be filed six months prior to the requested employment start date. The U.S. government’s fiscal year begins October 1st, thus FY13 cases must request a start date no earlier than October 1, 2012. The Murthy Law Firm is already accepting FY13 cap cases. These cases can be prepared in advance, and filed on the first business day in April, which is April 2, 2012 or after, as long as cap numbers are available.

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