Our readers have probably seen all the headlines in the last few days about the H-1B cap being reached in the first week this year, the first time since 2008. For most of you, this story will not affect you, other than it being an indicator of a recovering economy. Those of you who already have H-1B visas that were cap-subject when you applied will be able to seek another H-1B.

But for our readers who have not held an H-1B cap-subject visa (such as those of you currently on F-1/OPT or J-1) and who are hoping for an H-1B this year, you are affected. Here is the rest of the story on this year’s H-1B cap race from USCIS’ April 8, 2013 Press Release:

For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.

As announced on March 15, 2013, USCIS has temporarily adjusted its premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013. For more information on premium processing for FY 2014 cap-subject petitions, please see the related USCIS Alert.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

* extend the amount of time a current H-1B worker may remain in the U.S.;

* change the terms of employment for current H-1B workers;

* allow current H-1B workers to change employers; and

* allow current H-1B workers to work concurrently in a second H-1B position.

When Can I Apply Again?

Employees working for companies who already have H-1Bs that were cap-subject may continue to pursue other H-1Bs, such as for a change of employment or a second job.

The early cap exhaustion only affects those who have not held an H-1B, such as F-1/OPT workers, and existing H-1B holders who were exempt from the cap, such as those working for non-profit or governmental research institutions or for institutions of higher education, and who now want to move to cap-subject employment.

These employees will have to wait until next fiscal year’s H-1B visa pool. The earliest start date for work on next year’s H-1B will be October 1, 2014.  Petitioners, though, can file up to six months in advance of the employee’s start date, meaning as early as April 1, 2014. So, plan ahead for next year. Unless Congress enlarges the cap, you can expect another H-1B filing race next April 1.

What Can I Do While I Wait For Next Year’s Filing Time?

Meanwhile, what can you do while waiting for next year? You will need to maintain a valid visa status to stay in the United States or leave. Your options may include taking advantage of the STEM OPT 17-month extension, returning to school, or finding a job that enables you to use another visa category such as O (extraordinary ability) or J (exchange visitor). You should speak with a competent immigration attorney who can advise you on your options.

Remember that all H-1B employers are required to follow the wage laws and pay employees the required wage. If you are not being paid your required wage or have experienced other employer violations, contact a competent attorney to discuss your legal rights.

For more information about legal services we offer to foreign workers, including H-1B employees, see our page here or contact us at vonda@vkvlaw.com.