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H-1B Cap Reached! No More New H-1B’s Until October 1, 2013
June 12, 2012
The U.S. Citizenship & Immigration Service (USCIS) has announced that the H-1B cap was reached on Monday, June 11, 2012. The H-1B is the most common work visa for “professional-level” foreign employees. The U.S. government restricts the number of H-1B’s it issues every fiscal year (which runs from October 1st to September 30th), so that only 65,000 H-1B’s are issued each year, with an additional 20,000 H-1B’s for those who have earned at least a Master’s Degree from a U.S. institution.
All H-1B’s have now been exhausted for this fiscal year, meaning that the USCIS will not approve any more new H-1B’s for foreign employees until October 1, 2013 (the start of the next fiscal year). Employers should be aware of this because this means that they cannot hire any foreign workers who will require their first H-1B any time before October 1, 2013. Typically, this affects foreign workers here as F-1 students, TN’s from Canada or Mexico, or L-1 workers from international companies. There is some relief for F-1 students with Optional Practical Training (OPT), however. If the F-1 OPT expires any time after April 1, 2013, the employee can work now in current OPT status, and the employer can file for an H-1B on April 1, 2013 (the first date employers are permitted to file for H-1B’s again) for the employee to start in H-1B status on October 1, 2013. Then, the OPT status (and work authorization) is automatically extended from the date the OPT was set to expire until the H-1B starts on October 1st. This is called the F-1 OPT Cap-Gap Rule. In addition, F-1 OPT’s who have degrees in STEM-related fields (Science, Technology, Engineering, and Math) can extend their OPT’s (and work authorization) for an additional 17 months if they work for an employer enrolled in e-verify (a government-controlled, electronic identity and work authorization verification system). These additional 17 months give the employee time to apply for an H-1B the following fiscal year, and work in the meantime.
The H-1B cap does not affect extending H-1B’s of current H-1B holders, and does not affect transferring current H-1B holders from one employer to another. Also, the H-1B cap does not affect institutions of higher education, non-profit organizations affiliated with institutions of higher educations, non-profit research organizations, and governmental research organizations. All of those entities and individuals can obtain, extend, and transfer their H-1B anytime, regardless of the cap.
For those affected by the cap, there may still be creative solutions to obtain work authorization for the foreign worker, such as J-1, TN, E-3, L-1, and O-1 visas. Please contact Berin S. Romagnolo to discuss these solutions or anything else in this alert.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2012 Posternak Blankstein & Lund LLP. All rights reserved.