FY 2011 H-1B Petitions May Be Filed on April 1, 2010

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (“H-1B cap”) for Fiscal Year 2011 (FY 2011) begins on April 1, 2010. Employers are encouraged to begin identifying current and future employees who will need H-1B visa status to be legally employed. Individuals currently employed as F-1 students or J-1 trainees, individuals seeking to change to H-1B from another work status (such as L-1, TN or E-3) and individuals outside of the United States commonly require new, cap-subject H-1Bs. March 31 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2010. Petitions must be mailed on March 31 to secure receipt by U.S. Citizenship and Immigration Services (USCIS) on April 1.

The annual limit for new H-1Bs is 65,000 (less 6,800 set aside for citizens/nationals of Chile or Singapore) with an additional 20,000 available to H-1B applicants who possess a Master’s or higher degree from a U.S. academic institution. An applicant qualifies for an H-1B under the additional 20,000 allotment if they have completed all requirements for the advanced degree at the time the petition is filed.

In the Fiscal Years 2008 and 2009, the annual limit was exceeded within the first few days of filing, resulting in a random, computer-generated lottery for available visa numbers. Filing for the current Fiscal Year 2010 began April 1, 2009. In a reflection of current economic conditions, fewer H-1B petitions were filed, resulting in the cap remaining open until December 21, 2009. The fact that the filing period remained open for nine months does not tell the entire story, however. According to USCIS statistics, while the H-1B cap numbers hovered between 43,000 and 45,000 from April to August, nearly 19,000 H-1B petitions were filed in the three-month period from October to December.

While economic conditions may not have improved to the point where a lottery will again become necessary this year, it is still prudent for employers to prepare to mail new H-1B petitions on March 31, 2010. The surge in H-1B filings in the last few months of 2009 combined with pent-up demand suggest it is possible that the FY 2011 cap will be reached quickly. As noted below, delays in processing the prerequisite Labor Condition Applications (LCAs) make advance preparation even more critical this year. Note that in a lottery scenario, there can be no guarantee that all petitions timely submitted will be accepted for processing.

Not All H-1B Petitions are Subject to the Annual Quota

Not all H-1B petitions are subject to the annual limit. Among the types of H-1B petitions that are exempt from the H-1B cap include:

• Petitions filed to extend or amend H-1B employment for foreign workers already in H-1B status; and
• Petitions filed on behalf of new workers to be employed by institutions of higher education or related nonprofit entities, nonprofit research organizations, or governmental research organizations.

Important Notice Regarding Labor Condition Application Processing Times

The Labor Condition Application (LCA) is a necessary component of a properly filed H-1B petition. As part of the application, employers attest that they will pay the H-1B worker the higher of the prevailing wage for that position in the geographic area of employment or the actual wage paid to other employees in the same position.

The LCA is submitted online. In recent years, LCAs have been certified almost immediately. The U.S. Department of Labor announced a new procedure in August 2009, however, that substantially increased the standard LCA processing time. Currently, LCA processing is commonly taking seven days, and can take significantly longer.

To ensure timely filing of H-1B petitions against the annual quota, employers must take this additional processing time into consideration when finalizing hiring plans for the upcoming H-1B quota. To ensure the ability to file on March 31, 2010, we recommend that employers initiate all H-1B petitions as early as possible to ensure the timely approval of the LCA.

We recommend you contact the Ogletree Deakins attorney with whom you normally work to initiate any new H-1B petitions as early as possible.