Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On April 9, 2012, U.S. Citizenship & Immigration Services (USCIS) announced the number of H-1B petitions received to date for the FY2013 cap: 17,400 petitions under the 65,000 regular H-1B cap, and 8,200 petitions under the 20,000 H-1B U.S. Master’s Degree Exemption. This means that approximately 74% of regular H-1B petitions and about 59% of U.S. Master’s Degree Exemption petitions remain available.
Employers would be wise to initiate H-1B cap cases as soon as possible, as these data suggest that the cap is very likely to be met earlier than it was in 2010 and 2011. While the chart below indicates that the demand for cap-subject H-1B petitions is not significantly higher than in recent years, the number of petitions being initiated by many employers has remained constant since the cap opened on April 2, 2012, whereas in 2010 and 2011 there was a drop-off in the number of petitions being initiated immediately after the cap opened. Furthermore, as the economy continues to show signs of improvement, the demand for H-1B petitions next year (FY 2014) could be competitive. Therefore, employers should consider filing petitions under the FY2013 cap to avoid potential challenges next year.
Using Historical Filing Data to Predict When the 2013 Cap Might Be Met
| H-1B Fiscal Year | Number of Petitions Received | Date Cap Reached |
| FY 2013 | As of April 9, 2012, USCIS had received approximately 17,400 H-1B petitions counting toward the 65,000 cap (about 26%), and approximately 8,200 towards the 20,000 cap exemption for individuals with advanced degrees (about 41%). | May 31, 2012 to June 30, 2012 (ESTIMATED – as in prior years the cap can close abruptly and earlier than expected, so employers should not rely on these estimated dates) |
| FY 2012 | As of April 7, 2011, USCIS had received approximately 5,900 H-1B petitions counting toward the 65,000 cap (about 9%), and approximately 4,500 petitions toward the 20,000 cap exemption (about 22.5%) for individuals with advanced degrees. | Cap was reached November 23, 2011 |
| FY 2011 | As of April 8, 2010, USCIS had received approximately 13,500 H-1B petitions counting toward the 65,000 cap (about 21%) and approximately 5,600 petitions (about 28%) for individuals with advanced degrees. | Cap was reached January 26, 2011 |
Employers should be cognizant of the following when assessing an H-1B cap-subject filing:
- F-1 OPT/H-1B Cap Gap Provision: F-1 students holding Optional Practical Training (OPT) with pending or approved H-1B change of status petitions (not consular notification) may continue to work in F-1 OPT status from the date when an F-1 student’s OPT work authorization would otherwise expire through October 1, 2012 (the date when his/her approved H-1B employment period starts).
- F-1 OPT 17-Month STEM Extensions: F-1 students who (i) receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, (ii) are employed by employers enrolled in E Verify, and (iii) have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of this authorization.