Update on H-1B Cap and Employment-based Immigrant Visa Availability

Immigration Alert - May 17, 2012

FY 2013 H-1B Visas on Pace to
Run Out by End of June

U.S. Citizenship & Immigration Services (CIS) has reported that that as of May 11, 2012 it has received approximately 36,700 cap-subject petitions for H-1B positions under the “regular cap,” and 14,800 cap-subject petitions for H-1B positions for persons holding a U.S. Master’s or higher degree (the “U.S. master’s cap”). Based on this rate of usage, both the regular cap and the U.S. master’s cap will likely be reached by the end of June.

Please download and view our 2013 H-1B Visa Availability Chart containing the CIS updates and anticipated H-1B cut-off date based on current usage. Given the complexity of H-1B petitions, it can take several weeks after a case has been started before the H petition can be filed. Therefore it is critical that you contact us immediately if you plan on sponsoring any cap-subject employees this year. Additionally, it is important that you prioritize any unfiled cap-subject H-1B petitions to ensure that all paperwork is promptly returned to us. More information on the H-1B cap can be found in our February 2012 Immigration Alert.

Employment-based Immigrant Visa Cut-Off Dates Likely for the All Countries Category in the First and Second Preference Categories – Visas for India and China to Become Unavailable

Each year, 140,000 Employment-based immigrant visas (otherwise known as “green cards”) are made available to qualified foreign nationals and their dependent family members. These immigrant visas are allocated in set numbers across five different employment-based preference categories (see the discussion below). In addition, within each preference category, no more than 7% of the immigrant visas in any year can be allocated to the nationals of any individual country (this is referred to as the “per-country limitation”). For a number of years, more people have applied for immigrant visas in the lower preference categories than the number of visas available. In addition, more people from China, India, Philippines and Mexico have applied for immigrant visas in all of the preference categories than the per-country limitation allows. As a result, there have been backlogs in the lower preference categories for everyone in the world and then additional backlogs in certain of the preference categories for the nationals of China, India, Philippines and Mexico.

There are five different employment-based preference categories through which foreign nationals may qualify for an immigrant visa. Most employment-based preference petitions require U.S. employer sponsorship based on an offer of full-time, permanent employment, and the majority of individuals who are sponsored have to clear a Labor Certification process (PERM). When a PERM application is filed with the Department of Labor or (in cases which are exempt from PERM) an Immigrant Visa Petition is filed with the USCIS, the sponsored worker is assigned a “priority date.” A sponsored worker is only allowed to complete the process of applying for a green card if his or her priority date falls before the cutoff date listed on the monthly Visa Bulletin published by the U.S. Department of State, or when the visa category shows a “C”, for “current,” which signifies that immigrant visas are immediately available to any qualified applicant under the specific preference category (and based on country of visa chargeability).

Through the May 2012 Visa Bulletin, the Third Preference category had various cut off-dates for everyone in the world, China and India faced cut-off dates in the Second Preference category, and the First Preference category was Current worldwide. However, effective June 2012, no further employment-based immigrant visas will be available to natives of China and India in the Second Preference category until October 1, 2012 (which is the beginning of the next fiscal year). In addition, the Department of State has indicated that based on the current rate of demand, it may be necessary to establish cut-off dates for all other countries in the world in both the employment-based First Preference and Second Preference categories.

We strongly encourage all clients who are in a position to file for Adjustment of Status (based on an approved or pending Form I-140 Immigrant Petitions and current visa availability) to consider filing their I-485 Applications to Adjust to Permanent Resident Status as soon as possible to avoid potential delays. The same advice applies for clients who are eligible to concurrently file an Employment-based First or Second Preference Form I-140 Immigrant Petition and I-485 Application. We will carefully review with our clients the best strategy on a case by case basis. Note: For some individuals delaying the filing of an I-485 Application may make sense.

For more information, please contact a member of our immigration team.

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