H-1B Visa Filling Up Fast – Your Strategies & Options

The USCIS began accepting H-1B work visa petitions for the 2013 fiscal year on April 2, 2012. Every year, Congress allots 65,000 H-1B visas for qualified applicants with bachelor’s degrees (regular cap). An additional 20,000 are reserved for applicants with master degrees or higher (i.e.- MBA, JD, MD, etc.). Prior to the Great Recession in 2008, the 85,000 cap was reached very fast – sometimes within weeks or days of the start of the fiscal year. With the U.S. economy in decline since 2008, the cap began to take much longer to fill. For FY 2011, it took approximately nine months, whereas it took approximately seven months for FY 2012.

This fiscal year, the USCIS seen an astonishing turnaround in the number of H-1B petitions filed. On April 9, 2012, the USCIS announced that it had received 25,600 petitions (17,400 regular + 8,200 master’s). Thus, the cap was already 30% reached within one week of the start of the fiscal year. On April 13, 2012, the USCIS received 30,300 petitions (20,600 regular + 9,700 master’s) – accounting for 36% of the total cap. By April 20, 2012, the USCIS received 35,900 petitions (25,000 regular + 10,900 master’s) – accounting for 42% of the total cap.

Given this data, the H-1B cap is trending at about 5,000 petitions per week. With U.S. employers willing to hire foreign workers, this is a good indicator that perhaps the U.S. economy is finally turning around. The bad news, however, is that H-1B visas may be unavailable much earlier this year than it has been in the past two years. In fact, it is very possible that the cap is 50% full by the start of May 2012 and fully reached by June 2012. The cap may be reached even sooner if employers realize how quickly the cap is being reached this year, as more and more employers scramble to submit H-1B petitions on behalf of foreign employees. Employers seeking to hire a foreign worker under an H-1B visa are encouraged to start the process immediately in order to have the petition submitted before the cap is reached. It takes approximately three weeks to prepare a petition and to submit it to the USCIS, so time is of the essence.

If the cap is reached before an employer can submit an H-1B petition, there are other options. Canadian and Mexican citizens may apply under a TN work visa provided that the job falls within a designated list of professions. Foreign workers who have been working for companies abroad for at least one year in the past three years may transfer to the company’s U.S. Office on an L-1 visa. Foreign nationals with extraordinary abilities in their respective occupations may be eligible for O-1 visas.