The H1B Cap May Be Hit in the First Week - Really?


Nalini Mahadevan

Speculation about the cap has been rife in the business community. USCIS stated that all 65,000 H1B visas and 20,000 H1B visas reserved for US Masters
Degree holders would be finished in the first 5 days of filing from April 1 (Monday) to April 5 (Friday).

USCIS stated that it would monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap had been
met, which is called the final receipt date. If USCIS receives more petitions than 85,000 visa applications (regular and cap visas, disregarding the carve
outs for Singapore and Chile under Free Trade Agreements signed by the US with those countries), USCIS will use a lottery system to randomly select the
number of petitions required to reach the limit of 85,000 visas.

USCIS will reject petitions that are subject to the cap and are not selected. USCIS will also reject petitions received after it has received the necessary
number of petitions needed to meet the cap. The last time USCIS conducted a lottery for the H-1B cap was in April of 2008.

The consequences

Pronouncements like this have lead to a frantic need to file on the first day, so that the cap is not missed. The problem is that this artificial season
does not necessarily meet the hiring cycles for US business and employers. In other words, US business employment practices are artificially constrained by
the necessity to tailor employment hiring practices to coincide with a start on April 1. Depending on the industry, employers hire throughout the year,
varying with the ebbs and flow of business.

The takeaway

Immigration reform proposed by the 8 Senators has a more realistic view of the business world. Release visas as the demand grows, in a stepped up basis.
Now that we are talking about the ‘reality’ on the ground for employers and business, could we have a more realistic PERM labor system? I know, if wishes
were horses…. But I can dream the immigration dream, cant I?

See you in my next blog.

Copyright 2013. All rights reserved.

About The Author

Nalini Mahadevan brings extensive educational credentials, legal experience, and a bi-national background to successfully lead The Lowenbaum Partnership's immigration practice group.
She began her legal education and career in Mumbai, India practicing corporate law for five years before coming to the United States to earn her Masters in Business Administration from Washington University and her J.D. from the Saint Louis University School of Law. In 2003, Nalini began practicing Immigration Law with the Mahadevan Law Office, LLC. And today, she brings her wealth of experience to represent The Lowenbaum Partnership clients in the areas of Immigration Law, Estate Planning, and Probate.
Nalini is the Past Chair of the Immigration Law Committee of the Missouri Bar and serves as a frequent guest speaker for the Missouri Bar, Saint Louis University School of Law, the Bar Association of Metropolitan St. Louis, the American Bar Association, and the University of Missouri-Kansas City School of Law.
Recognized by the Missouri Bar for her dedication to lawyer education, Nalini has written numerous articles and is in the process of publishing the 4th edition of a book on the business of law. She is an adjunct Professor for the Saint Louis University School of Law, has been has been profiled in St. Louis Brief magazine. This year, she was honored with a nomination as Best Lawyer, in St. Louis. She is a frequent writer for, a leading publisher of immigration law.

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