Get Ready to File H-1Bs

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “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 actually need to be mailed on March 31 to secure receipt by United States Citizenship and Immigration Services on April 1.)

In Fiscal Years 2008 and 2009, the number of cases filed during the first few days of April exceeded the cap, resulting in a random, computer-generated lottery for available H-1B visa numbers. However, Fiscal Year 2010 filing began April 1, 2009, but the cap was not reached until December 21, 2009. As no one can tell what the demand for H-1Bs will be on April 1 of this year and thereafter, it is prudent for employers to immediately begin identifying persons for whom H-1B sponsorship will be needed. This will allow sufficient time for petition preparation, including the week or more required to file and receive certification of the prerequisite Labor Condition Application (LCA).  (See the February 2, 2010 issue of the Immigration eAuthority for more information on the upcoming H-1B filing period.)