U.S. Citizenship and Immigration Services (USCIS) announced that as of January 26, 2011 it had received more than enough H-1B petitions to reach the annual cap of 65,000 for fiscal year 2011 (FY 2011). H-1B petitions received by USCIS after January 26 will be rejected regardless of when the petition was postmarked. Petitions received on January 26 will be subject to a computer-generated random selection process (i.e., lottery) until the cap is reached. Petitions not randomly selected will be returned along with the associated USCIS filing fees.

USCIS previously reported that it had exhausted the FY 2011 allocation of 20,000 advanced U.S. degree or “Master’s Cap” petitions as of December 22.

As a reminder to employers, F-1 students in their Optional Practical Training (OPT) period have two ways to extend their employment authorization while awaiting processing of an H-1B petition. First, F-1 students whose OPT authorization expires after April 1, 2011, who are beneficiaries of a pending H-1B petition with an October 1, 2011 start date, can receive an automatic extension of their period of stay and employment authorization during the “cap-gap” period, which is the time between the expiration of the OPT period and the effective date of the H-1B petition approval on October 1. In addition, F-1 students with a degree in science, technology, engineering, or mathematics (STEM fields) who are employed by businesses enrolled in the E-Verify program can receive an extension of the OPT period from 12 to 29 months. For a review of the STEM extension, the “cap-gap” and F-1 student travel issues, visit USCIS’ website (see the section on OPT Resources).

USCIS will continue to accept H-1B petitions not subject to the FY 2011 cap. Non-cap subject petitions include petitions to extend the stay, amend the terms of employment, or change the employer of individuals who have been previously counted towards the cap. H-1B petitions for institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations also may be exempt from the cap.

USCIS will soon begin accepting H-1B petitions for fiscal year 2012 (FY 2012). April 1, 2011 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2011, the first day of the federal government’s 2012 fiscal year.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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