Lang Wallace LLC Blog

Friday, February 14, 2014

H-1B Cap Season is Here

It’s time to gear up for H-1B cap season! The upcoming H-1B season looks to be an active one already, harkening us back to years when the economy is strong and employers are hiring.


Last April, the maximum allowable slots for 65,000 petitions plus the additional 20,000 for graduates of U.S. advanced degree programs were filled within days of USCIS accepting H-1B applications. So many petitions were filed in the first five days that USCIS used a lottery to pick the H-1B petitions that would make it to the finish line, while all others were rejected.


Thankfully, Lang Wallace successfully made the cap for every H-1B petition filed for our clients – owing to the luck of the draw, but also to a standard of meticulous care so that we do not get rejections.


No one can guarantee cap-subject H-1B acceptance, but to take a shot at the lottery, US employers must act now to onboard highly-skilled, foreign workers. 


A few interesting facts about cap-subject H-1Bs …

  • Filing may occur no sooner than April 1st (however, no later than April 1st either, given foreseeable lottery conditions);
  • New H-1Bs cannot start their new status on payroll (or on the Form I-9) until October 1st;
  • People who use new, cap-subject H-1Bs are typically F-1 Students, sometimes prior J visa holders, sometimes G-4 employees, and L-1s moving to a new job, among others;
  • F-1s who graduate in the spring may qualify for the “cap-gap” letting them stay on US soil until their H-1B start date on October 1st;  if not,  plan a longer summer overseas and process for the visa stamp 10 days prior to October 1st ;
  • An advanced degree earned on US soil allows the Petition to go into the second lottery for selection out of the additional 20,000;
  • F-1 Students who are STEM graduates may ask their prospective employer to help them qualify for 29 months of OPT so they can try for H-1B status twice;
  • Employer viability is still problematic with US CIS, notwithstanding the fact that US CIS should be fostering entrepreneurs and new business. A US entity that is less than 2 years old or which is operating in the red will require additional evidence of current and projected business flow.


So, as you prepare for the H-1B season, remember these extra points:


  • Begin early.  Ideally, cases should be initiated with the law firm by mid-February in order to allow for any unanticipated delays or problems.  Beginning your case early allows us to file on “Day 1” which is April 1, 2014—giving your petition the best chance possible of being selected for processing. 
  • See if your employees might be cap-exempt, if the filing organization is an entity that is
    • an institution of higher education
    • a nonprofit entity related to or affiliated with an institution of higher education
    • a nonprofit research organization or government research organization

– or if the place of employ for an employee is a qualified government research organization pursuant to an existing contract.


Spring 2014 will be a real nail-biter for the many U.S. employers who need highly-skilled foreign-born workers.  Call one of our business immigration attorneys for a consultation to see if you may be eligible to file a cap exempt petition and to strategize for the upcoming H-1B cap season.


Christina Wallace, Suzette Blackwell and Christine Faller contributed to this article

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