FY13 H1B Cap Season: Time to Get Started!

As many MurthyDotCom and MurthyBulletin readers are aware, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting H1B cap-subject filings for fiscal year 2013 (FY13) as of Monday, April 2, 2012. The significance of April 2nd is that it is the first business day that falls six months in advance of October 1, 2012, the first day of FY13. H1B cases can be filed six months prior to the requested employment start date. The Murthy Law Firm is currently accepting cap-subject H1B cases for preparation and filing on the earliest possible date in April 2012, with a start date of October 1, 2012. Of course, our firm is also accepting cases for filing that are not subject to the H1B cap.

Advance Planning for H1B Filings is Important

Employers who intend to file H1B petitions for cap-subject workers should start the process ahead, if possible. There can be many documents required to prepare an H1B case, and there is always a variety of details in each case. If a case is begun in advance, it can proceed in a careful, less stressful manner.

Employers should, at a minimum, identify those employees who will need to have H1B cases filed in order to continue employment. Typically, these are employees working in optional practical training (OPT). Other common situations in which continued employment requires cap-subject filings include L1B employees who are reaching the five-year limit in their L-1 status, as well as L-2 spouses who may need or desire to hold independent status.

Foreign nationals who will require cap-subject H1B filings should approach their H1B employers regarding this matter, if they have not already done so. It is important to establish whether or not one’s current employer is willing to sponsor the H1B petition. If they are not, it may be time to seek alternative employment. The earlier one determines the current or potential employer’s position, the better it is for planning purposes, and if other options are to be considered. Additionally, employers may be more receptive if they have enough time to weigh any factors they wish to consider.

Understand the H1B Cap – When it May or May Not Apply

The H1B cap is often misunderstood. Many assume that their cases are cap-subject, when they are not. We explain common misconceptions regarding the need for a cap number in our InfoArticle, Shedding Light on Misunderstandings About H1B Cap.

Cases filed for individuals who have never held H1B status are subject to the cap, unless filed by an H1B cap-exempt employer. Anyone uncertain about whether the H1B cap factors into his/her immigration strategy should consult with a qualified immigration attorney.

How to Track Cap Filings

We at the Murthy Law Firm share timely cap count information from the USCIS with our readers. An easy-to-follow chart on the FY13 cap count will be provided, as well. The chart will be updated with each announced change in the cap count from the USCIS until the cap is reached. In fiscal year 2012 (FY12), the H1B cap was reached on November 22, 2011.

Future Trends in Filing H1B Cap Cases

The expectations for FY13 are somewhat similar to FY12. The usage of cap numbers, however, depends to a large extent on the state of the economy. There was a marked difference between FY12 and FY11. The cap was reached approximately two months earlier in FY12 than FY11. The exact reason is unclear, but it is likely tied in large part to improvements in the economy. As the economy improves, it is likely to be reflected in an increase in the number of cap filings. There is no way to accurately predict the length of the cap season. Cap-subject cases can be filed until the cap is reached. Employers needing to file for their potential H1B employees should file early and feel free to contact the Murthy Law Firm for assistance. Individuals who have been asked to select an attorney for this purpose are also welcome to contact the Murthy Law Firm to help file their H1B cases.

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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.