United States: Fiscal Year 2013 H-1B Cap Reached; EB-2 Retrogresses For All Countries

H-1B Fiscal Year 2013 Cap Is Reached

On June 12, 2012, U.S. Citizenship and Immigration Services (USCIS) announced that on June 11, 2012, it had received a sufficient number of petitions to reach the statutory cap for Fiscal Year 2013. The H-1B Master's Degree Exemption cap had been previously reached on June 7, 2012. As a result of all H-1B visa numbers being accounted for, USCIS will reject petitions received on June 12, 2012, or later if they are subject to the Fiscal Year 2013 cap.

The next available date for new H-1B visa numbers will be on the first day of Fiscal Year 2014—October 1, 2013. Applicants may begin filing for petitions under the Fiscal Year 2014 cap on April 1, 2013. However, USCIS will continue to accept petitions exempted from the cap for university and nonprofit research organizations, current H-1B visa holders and those who have been counted under the cap in the last six hears. H-1B Fiscal Year 2013 visa numbers are also still available for foreign nationals from Chile and Singapore.

The H-1B cap has not been reached this early since Fiscal Year 2009 when it was reached on April 8, 2008—one week after the commencement of the filing period. Alternatives to the H-1B cap may include Science, Technology, Engineering, or Mathematics (STEM) extensions of Optional Practical Training for foreign nationals on student visas in technical fields, O, P, E-1, E-2, E-3, H-3, J, R or TN visa applications. Determining if an alternative exists and which one would be best requires an in-depth review of the individual facts and circumstances of each aspect of an application, including the employer, foreign national and job description.

EB-2 Preference Will Retrogress on July 1, 2012

In the July 2012 Visa Bulletin issued on June 11, 2012, the U.S. Department of State imposed cut-off dates in the Employment-Based Second Preference (EB-2) category for all countries for the first time in recent memory. On July 1, 2012, EB-2 is set to retrogress to January 1, 2009. This means that anyone who is eligible to file a Form I-485, Adjustment to Register Permanent Residence or Adjust Status in the Second Preference category must be sure their application arrives at USCIS on or before June 29, 2012. After this date, USCIS will accept EB-2 Adjustment of Status applications only for those applicants who have a priority date of December 31, 2008, or earlier. The retrogression will also affect consular processing cases as well, bringing any with priority dates on or after January 1, 2012, to a temporary halt after July 1, 2012.

It is possible that visa demand pressure on the EB-2 category could lessen with the advent of the Fiscal Year 2014 on October 1, 2013, when new visas will become available. Yet there is no guarantee that things will return to normal at that time. Applicants in the EB-2 category with pending I-485 applications will also experience delays until new visa numbers become available and the priority dates advance.

EB-2 visas for Indian and Chinese nationals remain unavailable until at least October 1, 2012. There was minimal movement in the Third Preference category (EB-3), with advancement of four weeks for India, China and all other countries.

The State Department has also predicted that cut-off dates for the first employment preference category (EB-1) may be imposed in the coming months, as demand for visas in this category remains high. With this possibility looming, concurrent filing of I-485 adjustment of status applications should be considered for all EB-1 I-140 petition filings to potentially eliminate uncertainty in the adjustment of status process.

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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