On November 23, 2011, the US Citizenship and Immigration Service (USCIS) reported that the prior day, it had received a sufficient number of H-1B temporary worker petitions to exhaust the Fiscal Year 2011 H-1B Cap.  The H-1B Cap was thus reached approximately 2 months earlier than was the H-1B Cap in Fiscal Year 2011.  Was this a sign that the economy is improving and that hiring is increasing? 

Possibly, but there may be other reasons.  For example, the Immigration Service had begun applying a stricter level of review to L-1 (intracompany transferee) and O-1 (extraordinary ability) petitions.  Could the quicker use of H-1B temporary worker numbers have resulted because employers simply decided to file H-1B temporary worker petitions rather than using other nonimmigrant categories? 

Another possibility is that due to USCIS’s somewhat recent re-assessment of the meaning of “affiliation” as it relates to employer H-1B cap exemptions, some employers may have opted to take the safe route and file H-1B cap-subject petitions rather than risking that H-1B cap-exempt petitions would be rigorously reviewed, perhaps resulting in petition denial.  

Whatever the reason for the quicker exhaustion of the Fiscal Year 2012 H-1B Cap, it’s likely that the Fiscal Year 2013 cap will also be reached before FY2013 concludes–maybe even earlier than last Fiscal Year.  As such, it’s not too early to begin thinking about Fiscal Year 2013 H-1B temporary worker filings.  Employers may begin filing cap-subject H-1B petitions as early as April 1, 2012, with a requested employment start date of no sooner than October 1, 2012.