Saturday, September 15, 2012

H-1B Cap for FY13 was Reached 06/11/2012

USCIS has announced that On June 11, 2012, it received a sufficient number of petitions to reach the statutory cap for FY 2013. On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012.

Another USCIS announcement clarifies three points:
    • Definition of "Receipt" Within the Cap: the cap filing must have been "physically" delivered to the USCIS offices of jurisdictions before the end of business day of 06/11/2012. The term "physical delivery" is a tricky term and readers are advised to go back to our earlier posting on this subject. Postmark is not enough. Any filings that arrive after June 11, 2012 will be rejected.
    • Master Cap Cases: The agency received enough Master cap H-1B petitions as of 06/07/2012. Since any master cap cases which exceed the master cap numbers were automatically taken in as part of the regular cap cases taking the cap numbers out of the regular cap pool, inasmuch as their cases were physically delivered to the agency within the business day of June 11, 2012, their cases will be counted within the cap. The announcement of reach of regular cap included such master cap cases which exceeded the 20,000 cap in the final count of the regular cap.
    • Cap announcement does not affect those who will apply for extension of their H-1B status either with the same employer or different employer since their cap number has already been taken out and counted already when they had first obtained the H-1B petition approval. Here, probably use of the term "extension" is misnomer because there could be some people whose H-1B petitions had been approved and counted but have yet to be used and yet to enter the country in a H-1B visa status or if already in the U.S. in other nonimmigrant status, change of status from other nonimmigrant status to a H-1B status based on the previously approved H-1B petition, provided that the approved H-1B petition must not have been revoked by the agency. These cases are "not subject" to the H-1B cap, but "not" exempt from H-1B cap. There has been confusion about these two terms. Even the H-1B petition forms uses the "Cap Exampt" confusingly. Under the immigration statutues, there are certain employers such as higher learning institutions, non-profit or government research entities or others which are listed in Part C. 3 of I-129 H-1B Data Collection Supplement Form that are exempt from the annual cap of H-1B by "special provisions." These are so called "Cap Exempt" cases. These Cap Exempt employers can keep filng H-1B petitions for professional workers inasmuch as they meet the threshold requirements for qualified employer and for the qualified professional as defined in these special provisions.
  • Employers are advised to keep the proof of delivery safe until the Receipt Notice is received in the mail.

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