You may be aware that the dates October 1 and April 1 have
significance for H-1B status. In this post, I will explain why they do.
Each fiscal year, Congress has a limit on the number of
petitions that can get H-1B approval. This federal fiscal year runs from
October 1 until September 30 of the following year. The “year” designation of a
particular fiscal year is the ending, not the beginning year. Therefore, “fiscal
year 2013” is that year that begins October 1, 2012 and ends September 30,
2013. If, during a particular fiscal year, the cap is reached, then the
government is unable to approve any more H-1B cap-subject petitions, and
therefore no cap-subject person will be able to work during that fiscal year.
Rather, that person will have to wait until the beginning of the NEXT fiscal
year, when a new set of H-1B approvals is available and new cap comes into
existence. That next fiscal year begins on October 1.
In addition, the H-1B procedure is such that petitions can
specify a requested starting date that is up to six months in the future. Therefore,
because the earliest time a person can start work in a new fiscal year is the
beginning of that year, October 1, then the earliest time an employer can file
a petition is six months prior, that is, April 1. If an employer files any
earlier, for example on March 31, the petition could not be approved for an October
1, start, because October 1 is more than six months from March 31. In fact, if
the cap is full for the current year, and the government receives a petition in
the current fiscal year, because perhaps an attorney or paralegal filed the
petition too soon, then that petition will be denied.
Given this information, what should you keep in mind for
H-1B?
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Do not file too early
If the cap is full in the current fiscal year (as is true
now), then the government should not receive your petition earlier than April
1. If it does, the government will deny your petition. In that case, your
filing fees are gone, i.e. the government will not refund them. Therefore, if
you are sending your petition via courier such as Federal Express, send your
petition AT MOST the day before, no more. Yes, Federal Express offers a lower
rate for its “two day delivery” service, and you might be tempted to save money
and send the petition two days prior to
April 1. The problem though, is that Federal Express, even though specified a
two day delivery, still nonetheless COULD deliver your package in only one day,
if they are able. That is, the “two day” specification is an outer limit, not a
minimum waiting time. The best approach, therefore, is to file the day before,
and ask for overnight delivery.
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There is no H-1B filing “deadline”
People often ask me, “Calvin, what is the deadline for
filing an H-1B petition?” I respond by saying that there is no “deadline.” That
is, the government does not end its acceptance of cap-subject petitions based
on a fixed date. Rather, it ends its acceptance of such petitions when the cap “runs
out,” that is, when no more cap spaces are available. Therefore, the important
thing is to file your completed petition as soon as you possibly can.
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