You’re a Human Resources guru. A few years ago, your employer petitioned for H-1B status for a foreign student. The H-1B employee is working out really well and is in the middle of a project that is critical to the company. You just became aware that the employee’s H-1B status expires on September 30th of this year. Of late, you’ve been hearing a lot of news about the H-1B cap and the need to file H-1B petitions on or about April 1st for an October 1st start date. The H-1B employee is concerned and you aren’t really sure whether all the urgency relating to the April 1st filing target applies to your company. The dates seem to match up with what everyone is talking about, but does this need attention right away? Is your company subject to the H-1B cap? Is the employee subject to the cap? What exactly does that mean…to be “cap subject”? Could you lose the worker?
Of course, the first thing you’ll want to do is call your friendly immigration attorney for advice. But, here are a few points to keep in mind:
- Within each federal government fiscal year (10/1 to 9/30), there is a limit on the number of certain H-1B petitions that USCIS may approve. For the coming fiscal year, the limit is 65,000 with an additional 20,000 for petitions involving a master or higher degree. There are also separate numbers for citizens of Chile and Singapore.
- Some H-1B petitions count against this annual fiscal year limit or “cap” and some do not.
- Those which USCIS counts against the cap are of course referred to as “ cap subject”. Those which are not counted against the H-1B cap are typically referred to as “ cap exempt”.
- An exemption to the H-1B cap can apply to a petitioning employer or to an employee.
- A good place to find a summary of the exemptions is on the H-1B petition form. Like most legal concepts, the exemptions are of course subject to interpretation.
- When the exepcted or actual demand for H-1B workers exceeds the total number of H-1B petitions that can be approved in a given fiscal year, there is an urgency to filing a cap-subject H-1B petition within a prescribed time period or as early as possible beginning on April 1st (depending on how USCIS decides to manage the anticipated over-abundance of H-1B petitions in a given year).
- An H-1B petitioning employer that is cap-exempt may file an H-1B petition at any time of the year, whether for a new employee or to extend the H-1B classification of a current employee.
- A foreign national who is exempt from the H-1B cap may be sponsored at any time of the year.
- Those who do not qualify for an exemption are the ones who must be mindful of the highly sensitive timings.
The H-1B cap-subject/cap-exemption analysis can be complex. Rather than guess, if you have questions about the H-1B cap, now is a good time to seek resolution, figure out a strategy with your immigration attorney, and move forward.
Ms. Wadhwani is a partner in the Immigration Group at Fox Rothschild LLP. She may be reached at firstname.lastname@example.org.