H-1B filing season to begin April 1-5, 2013 – Visa may run out in first week

Article courtesy of SBAM Approved Partner Clark Hill PLC
 
Employers are reminded to identify new candidates who will require H-1B sponsorship as soon as possible, to ensure that these applications are accepted for processing.  April 1 through April 5, 2013 will be the soonest that an employer is able to file an H-1B petition on behalf of a foreign national who has not possessed H-1B status before.  Employees with approved H-1B petitions will be able to begin work in that status on October 1, 2013.  
 
The H-1B is a frequently used temporary work visa for professional positions.  Generally, there are only 65,000 H-1Bs available per year.  Although the annual limit in 2012 was not reached until June 2012, the annual limit has been reached in prior years in early April.  This year, we anticipate that H-1Bs applications will run out the first week of April or shortly thereafter.  Under the regulations, if USCIS receives more than enough petitions in the first five days of processing, there will be computer generated random selection process to choose which H-1B petitions will be accepted for processing.  All applications received during the first five business days of April will be treated as though they were received on the first business day of April.  
 
There are an additional 20,000 H-1Bs available for candidates with a Master’s Degree or higher from a US university.  Foreign nationals who work for a non-profit research organization, an institution of higher education, or work furthering the purposes of either of these, or have used a cap subject H-1B, are exempt from the H-1B quota.  For more information on H-1Bs, see the Clark Hill website.
 
Visa Priority Dates – March Visa Bulletin and Predictions for Upcoming Months
 
The March Visa Bulletin has been posted.  Visas for employment based first preference cases (EB-1)  are current.  Visas for employment based second preference cases (EB2) included in the “worldwide” limit are also current. Visas for employment based second preference cases (EB2) for individuals born in India remain at September 1, 2004, and for individuals born in China, dates have progressed to February 15, 2008.  There has been some forward movement for the EB-3 category.  
 
In addition, the DOS provided the following information regarding potential monthly movement for the April through June visa bulletins:  EB-1 to remain current; EB-2 Worldwide to remain current; EB-2 China to move forward three to six weeks; EB-2 India will not move from its current date. The DOS stated the following regarding the lack of movement in India for the EB-2 category: “despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from U.S. Citizenship and Immigration Services (USCIS) Offices for adjustment of status cases remains extremely high.  Should the current rate of demand continue, it is likely that at some point the cut-off date will need to be retrogressed in an effort to hold demand within the FY-2013 annual limit.”
 
For the EB3 category,  the DOS provided the following regarding potential monthly movement:  EB-3 Worldwide to move 4-6 weeks; EB-3 China to move 2-3 months; EB-3 India to move up to two weeks; EB-3 Mexico to move 4-6 weeks; and EB-3 Philippines to move up to 1 week.
 
The DOS stated the following caveat regarding the movement predictions:  “the above projections for the Family and Employment categories are for what is likely to happen during each of the next few months based on current applicant demand patterns.  Readers should never assume that recent trends in cut-off date movements are guaranteed for the future.  The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables which can change at any time.  Those categories with a “Current” projection will remain so for the foreseeable future.”  For a summary of priority dates, retrogression, and how these dates impact US green card processing, please use SBAM’s Ask An Expert service.