Yes, It Is That Time of Year Again—H-1B Cap FY2013

March 12, 2012 Authors: Cindy Kang Ansbach, Jeff Ghouse

U.S. Citizenship and Immigration Services ("CIS")

CIS will start accepting H-1B petitions for fiscal year 2013 (October 1, 2012 - September 30, 2013) on April 2, 2012, and it will not accept H-1B cap filings before such time. In prior years, the H-1B cap for the upcoming fiscal year was met as early as the first day of filing or within several months.

For FY2012, the cap was met in November 2011. Once the FY2013 H-1B cap is met, CIS is expected to adopt a "random lottery" process to allocate the H-1B cap numbers. Accordingly, employers are encouraged to plan ahead for H-1B filings.

As a background, the H-1B category is designed for foreign professional workers holding a university degree, and it authorizes the foreign professional to work in the United States in a "specialty occupation." For most professional positions, the H-1B classification is the only visa category available.

The earliest H-1B employment start date will be October 1, 2012. The numerical limitation ("cap") on new H-1Bs for FY2013 is 65,000. Exemptions to the H-1B cap include: H-1B amendment/extension petitions, H-1B transfer (change of employer) petitions, and H-1B petitions filed by higher educational institutions and related non-profit entities.

The special exemption from the H-1B cap for foreign nationals who possess a master's degree or higher from a U.S. university will continue in FY2013. This exemption is limited to 20,000 H-1Bs per fiscal year.

Fulbright's Immigration Practice will file H-1B petitions for FY2013 on March 30, 2012 (for CIS receipt on April 2, 2012). Due to time constraints placed by third parties (for example, academic evaluation services and the U.S. Department of Labor), the Immigration Practice Group must receive all necessary information and documents from clients as soon as possible.

While we cannot guarantee that an H-1B petition will be accepted by CIS for count against the FY2013 H-1B cap, we encourage employers to plan ahead to maximize the likelihood of timely H-1B cap filings. We will continue to provide updates regarding the FY2013 H-1B cap as we receive notice from CIS.


This article was prepared by Fulbright's Immigration Practice Group. Should you have any questions concerning the above or any other employment-based immigration matter, please do not hesitate to contact Cindy Kang Ansbach (ckang@fulbright.com or 214 855 7499), Partner and Head of the Immigration and Nationality Practice Group; Jeff Ghouse (jghouse@fulbright.com or 214 855 8205); Jacquelyn P. Maroney (jmaroney@fulbright.com or 512 536 2420); or Benjamin J. Schatz.