• H-1B Cap Almost Reached
  • June 6, 2012 | Authors: Susie Kim; Mark J. Newman; Aimee Clark Todd
  • Law Firms: Troutman Sanders LLP - New York Office ; Troutman Sanders LLP - Atlanta Office
  • U.S. Citizenship and Immigration Services (USCIS) announced that, effective June 1, 2012, approximately 55,600 H-1B cap-subject petitions have been received counting toward the H-1B cap of 65,000 petitions. In addition, 18,700 petitions have been received counting toward the U.S. advanced degree exemption for 20,000 additional petitions. In general, the cap applies only to petitions for new H-1B employment, not to H-1B extensions or an H-1B change of employer (unless the prior employer was cap-exempt).

    At the current rate, we expect the H-1B cap to be reached this month, possibly as early as this week or the following week. Once the cap has been reached, H-1B petitions subject to the cap cannot be filed again until April 1, 2013, for a work start date of October 1, 2013.

    Employers who need to hire a foreign worker and would normally use the H-1B category should consider the alternative categories that are available:

    As mentioned above, employers may file H-1B petitions for those already in H-1B status previously subject to the cap, or who held such status during the last six years (and who have not remained outside the U.S. for one year or longer).

    • H-1B petitions for certain university or college employees, including those working for related research entities, are exempt from the cap.
    • H-1B1 petitions for nationals of Singapore and Chile are subject to a separate cap, which has not been reached.
    • The H-2B category is available for certain intermittent, peak-load or seasonal work (also subject to a cap).
    • The H-3 and J-1 categories are available for those receiving training in the U.S.
    • E-1/E-2 petitions can be filed if a treaty with the person’s home country exists and the U.S. company is owned at least 50% by individuals or entities with that same nationality.
    • E-3 petitions may be filed for nationals of Australia, with similar requirements as the H-1B category.
    • I petitions can be filed for foreign media workers (note that this is not available for regular employment of a media worker in the U.S., but only for foreign media workers temporarily in the U.S. on behalf of a foreign entity).
    • L-1 petitions can be filed for certain internal transfers from related companies abroad.
    • O petitions can be filed for individuals of extraordinary ability in their field.
    • P petitions can be filed for certain coaches, athletes, entertainers and culturally unique performers.
    • R petitions can be filed for religious workers.
    • TN petitions can be filed for nationals of Canada or Mexico working in a listed occupation.
    • The B-1 in lieu of H-1B or H-3 category is available for individuals who will remain on foreign payroll while on a brief work trip to the U.S. This category is highly scrutinized.
    • Individuals may wish to enroll in a U.S. school to obtain F-1 or M-1 student status and return to school, waiting for an employer to file an H-1B petition when the cap opens again next year.

    As you can see, there are various alternatives to the H-1B category but each is very limited in its own way. For this reason, every case must be assessed on its own merits.