H1B Quota Exhaustion Likely by April 5, 2013

The U.S. Citizenship and Immigration Services (USCIS) has released a prediction, based on external feedback, that the fiscal year (FY) 2014 cap limit may be exceeded during the minimum required, five-business-day filing period of April 1-5, 2013. We at the Murthy Law Firm, therefore, once again urge readers who are filing H1B cases against the FY14 cap to prepare their cases for filing during that minimum five-day filing window. Assuming that a case is accepted and approved, the earliest that the employee can begin work in H1B status is October 1, 2013.

Background: Shorter H1B Cap Filing Seasons

MurthyDotCom readers have been alerted over the past few months to the need to prepare for the FY14 H1B cap-filing season. The clear trend in the recent past is toward higher volumes of early H1B cap filings and, as a result, shorter filing seasons.

More information on this topic is available in our article, FY 2014 Cap Filing Season Approaching (22.Feb.2013). Cap-subject H1B cases can be filed to reach the USCIS as of April 1, 2013. H1B cap filings can continue until the cap is reached. As explained below, there is a special rule for the first five business days in April.

First-5-Business-Day Rule for H1Bs Received at USCIS

The USCIS must allow for the filing of H1B cap-subject cases for a minimum of the first five business days in April. This is a special USCIS rule for the treatment of H1B cap filings. For the FY14 cap filings, this period runs from April 1 through April 5, 2013.

If the cap is exceeded during this five-day period, the USCIS will conduct a lottery of all the cases filed in the five-day filing window. This lottery will randomly select the cases that will continue being processed against this year’s cap. Cases not selected in this lottery will be rejected, and the filing fees will not be cashed.

Because of the five-business-day rule, a case filed on April 2nd, 3rd, 4th, or 5th has the same chance of receiving a cap number as a case filed on April 1st. Of course, it is best to aim for USCIS receipt by the 1st, to allow for any unexpected delays in delivery. If the cap is not reached during the first five business days in April, the USCIS will continue to accept cases on a day-by-day basis, until the H1B quota has been exhausted.

USCIS Anticipates Reaching Cap by April 5, 2013

The USCIS has alerted the public that indications are that the volume of H1B filings will exceed the cap by April 5th. This USCIS prediction is based upon information obtained from stakeholders (those who have an interest and involvement this matter). Although not specifically stated, the stakeholders here likely include major U.S. employers with a history of utilization of the H1B program and their legal representatives. This is consistent with rumors and anecdotal information within the immigration community.

Conclusion

We appreciate USCIS efforts to keep the public informed on expectations for FY14. Of course, even the USCIS cannot know with absolute certainty whether the H1B cap will be reached by April 5th. The information is intended as an advisement of what is anticipated, so that those who will be affected can plan accordingly.  Readers should check MurthyDotCom for any NewsFlashes or timely updates regarding the FY14 cap.

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