The FY 2014 Cap Was Reached On April 5, 2013
The Fiscal Year 2014 H-1B filing season began on April 1, 2013, when U.S. Citizenship and Immigration Services (USCIS) began accepting cap-subject H-1B petitions requesting a FY 2014 H-1B number with a start date of October 1, 2013 or later.
The cap was reached a few days afterwards, on April 5, 2013. USCIS announced:
"For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption."
USCIS had estimated that the 2014 cap would be reached within the first few days after the filing season opened. Since the cap was reached within the first five business days on which cap-subject petitions may be filed, on April 7, 2013, USCIS conducted a random lottery of all the cap-subject petitions received from April 1 - April 5, 2013, as required by 8 CFR 214.2(h)(8)(ii)(B). All cap-subject petitions received during those dates were included in the random selection process. USCIS began with petitions filed for holders of advanced degrees, selecting 20,000 of those under the advanced degree exemption. All advanced degree petitions not selected were then included in a random selection process for the 65,000 statutory limit. Petitions received during those days that were not selected will be rejected and the petition and filing fee returned to the petitioner. Petitioners such as institutions of higher education who are exempt from the cap will continue to file normally.
According to the American Immigration Lawyer's Association (AILA), on April 12, 2013 USCIS informed the audience at the AILA Spring CLE conference that USCIS is in the process of data entry for the petitions received. According to AILA, although USCIS hopes to finish entering data for premium processing cases by April 15, 2013, data entry of standard filing cases "will likely not be completed until sometime in May, and rejection notices for petitions not selected in the lottery will be sent out after that." [AILA InfoNet Doc. No. 13041600 (posted Apr. 16, 2013)]
FY 2014 H-1B Numbers
There is an annual fiscal-year limit of 65,000 on the number of new H-1B "slots" available. This number is commonly referred to as the H-1B Cap. When the available H-1B numbers have been used for the federal fiscal year, which begins October 1 and ends September 30, the cap is considered reached, and no new cap-subject petitions can be approved until the next fiscal year. If an H-1B petition is revoked because of fraud or willful misrepresentation of a material fact, then that H-1B visa number will be restored to the supply of H-1B numbers available in the fiscal year in which the petition is revoked.
The following groups are not subject to the general H-1B cap [INA § 214(g)(5)-(11)]:
- Employment at a cap-exempt employer, including:
- institutions of higher education,
- nonprofit entities related to or affiliated with an institution of higher education,
- nonprofit research organizations, and
- governmental research organizations.
- Certain employees who were counted against the cap during the past 6 years.
- Employees already in H-1B status that were already counted against the cap, and are applying for extension of stay, an amendment to the H-1B petition, or for a change of employer.
- J-1 physicians granted Conrad waivers of the 212(e) requirement.
- Citizens of Singapore and Chile applying for special H-1B status under one of the Free Trade Agreements with those countries are counted from a special set-aside of 6,800 numbers. (Unused numbers from the 6,800 set-aside are made available for general use at the beginning of the following fiscal year.)
- The first 20,000 employees who have earned a U.S. master's degree or higher are not counted towards the cap (but are counted after the first 20,000 slots have been taken).
USCIS uses the information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement of Form I-129 to determine whether a petition is subject to the H-1B cap, or whether it is eligible for one of the exemptions.
Brief Background on the H-1B Cap
The annual supply of H-1B numbers is limited by a statutory cap, and when that cap is reached, no H-1B petitions will be approved until the next fiscal year's filing season begins, unless the petition is filed by a cap-exempt employer, or unless the H-1B beneficiary is otherwise exempt from being counted against the cap for that fiscal year. Since the earliest a petitioner can file an H-1B petition is six months before the requested start date, April 1 begins the filing season each year.
USCIS notes that, "The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year."
There is also a statutory exemption from the cap for the first 20,000 beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education. Petitions for such individuals that are filed after the 20,000 exemptions are granted will be counted against the cap.
How quickly the cap is reached depends on demand. In prior years, as well as this year, the H-1B cap was reached within the first few days of the filing season. FY 2010 cap numbers lasted until December 21, 2009. The FY 2011 cap was reached on January 26, 2011, the FY 2012 cap was reached on November 23, 2011, the FY 2013 cap was reached on June 11, 2012, and the FY 2014 cap was reached on April 5, 2013.