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An immigration attorney knows the economy is improving based on the number of H-1B petitions she files at the end of March.  Both the private and public sectors speculate every year on how much earlier the H-1B cap for the next fiscal year will be reached.  This year, based on surveys, the government predicts that the H-1B cap may be reached as early as April 5, 2013, if not on April 1, 2013.  This weekend, employers and immigration attorneys nationwide were waking from nightmares of courier packages going astray, while rubbing well-worn rabbits’ feet and looking for four leaf clovers, awaiting news on the 2014 Fiscal Year H-1B Cap.  While employers who waited too late to jump in the game this week, wait to see if they may still be a contender for this year or will have to consider an alternative hiring plan until H-1B visas become available again for Fiscal Year 2015.

To qualify for H-1B temporary worker status, the position the employer offers must be complex enough to require at a minimum a four year post-secondary degree or advanced degree to accomplish the duties and responsibilities of the position successfully.  The beneficiary of the H-1B status must provide evidence that she possesses not only at a minimum a four year Bachelor’s degree, but that she also qualifies for the position offered.  Employers petition for H-1B status to hire foreign nationals to fill positions from entry level professionals to vice president.

Under the current laws, the government caps issuance of H-1B visas at 65,000 per fiscal year.  About 6,800 of those numbers are carved out per Free Trade Agreements between the United States and Chile and Singapore.  An additional exemption of 20,000 H-1B visas has been added to retain graduates from United States universities with advanced degrees.  The 65,000 H-1B cap, while temporarily increased in fiscal years, 2001, 2002, and 2003, has not changed since the 1990s.  However, the United States economy and workforce needs have changed dramatically since the 1990s.  The current H-1B cap is not enough to meet the demands of our current growing economy.

The government fiscal year begins October 1, which means the earliest date that a foreign national may work in H-1B status for the upcoming fiscal year is October 1.  An employer may petition for H-1B status on behalf of a foreign national within six months of date of need.  So the earliest an employer may file for an October 1, start date is April 1.  USCIS will only begin accepting H-1B petitions for the next fiscal year on April 1.  If an employer jumps the gun and sends a petition for delivery before April 1, USCIS will reject and return the petition to the employer.  The employer may not know about the rejection until May.  USCIS will also reject an H-1B petition that lacks a certified Labor Condition Application from the US Department of Labor.  USDOL at a minimum takes seven business days to certify a Labor Condition Application, and that is only after the employer has verified his Federal Employer Insurance Number with the Foreign Labor Certification division of the US Department of Labor.  Therefore, in March, immigration law firms and employers across the country calculate, anticipate, and plan to have H-1B petitions ready to go out the door on the last business day or courier pick-up day immediately preceding April 1; this year, for most petitioners, that date fell on Friday, March 29, 2013.

When the H-1B cap is reached has varied over the years along with the United States economy.  Last year the cap for the 2013 fiscal year was reached in June 2012.  For fiscal year 2012, the cap was reached in November 2011.  Since 2008, the date when the H-1B cap is reached has been steadily coming earlier and earlier, just as our economy has steadily improved.

In reality, when employers decide to petition for an H-1B worker depends greatly on the demand in the labor market.  When the economy recesses and the labor market is flooded with available workers, employers tend not to rely on a foreign labor force as much.  For the 2010 fiscal year, immediately following the economy bust in Fall 2008, the H-1B cap was not reached until February 2010, only one month shy of the first date employers could file for the 2011 fiscal year.

In April 2008, just before the economy went bust in September 2008, the US Citizenship and Immigration Services received a record number of H-1B petitions.  On April 1, 2008, for the 2009 fiscal year cap, USCIS received over 150,000 petitions.  The phenomenon backed up FedEx overnight service so much that the courier could not generate individual receipts.  FedEx could only guarantee that if the package was addressed to the Vermont Service Center, it was delivered.

This year predictions and bets have been announced that we may experience another 2008 lottery.  In most years, a petitioner can rest assured that if his H-1B petition was accepted for receipt on April 1, the petition will be adjudicated.  In 2008, because more than enough petitions were accepted for receipt on April 1, USCIS stopped accepting petitions after April 1, and the petitions received were placed into a lottery pool.  Petitioners were not informed whether their petition was accepted for adjudication or rejected until the beginning of May 2008.

Proposed Comprehensive Immigration Reform addresses business immigration as well as the growing undocumented population in this country.  Immigration reform is more than a path to citizenship for undocumented immigrants; CIR is much needed reform to address our broken immigration system and our economy.  Our economy, according to most experts, has not yet improved to pre-2008 levels, and we are already facing a possible H-1B petition lottery this year.  Not addressing the restrictive cap for one of the most popular employment based visas could severely limit our economic growth and standing on the international market in the future.

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