H-1B News: Filing Season Starts April 1

As a reminder to employers, the filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for fiscal year 2012 (FY 2012) begins on April 1, 2011. For the past two years, the H-1B cap has not been exhausted for several months, unlike what occurred for fiscal years 2008 and 2009 when the cap was reached within the first few days of April. However, no one can be sure of the level of demand and, as such, employers are encouraged to immediately identify 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. A total of 85,000 new H-1Bs are made available each government fiscal year, 65,000 under the general cap and 20,000 under the “Master’s cap” for those with advanced degrees from U.S. universities.

U.S. Citizenship and Immigration Services (USCIS) issued a news release on March 18, 2011, reminding employers of the H-1B filing procedures for FY 2012. USCIS made an announcement on March 2, 2011, regarding a proposed rule that would establish an advanced registration process for employers seeking to sponsor cap-subject H-1B workers. The new, pre-filing registration requirement is not in effect for FY 2012.

In other H-1B news, USCIS also issued a statement confirming it will continue to extend exemptions to the H-1B cap to non-profit entities related to or affiliated with an institute of higher education. However, USCIS is reviewing its policy of applying a cap exemption to such entities. A change in policy could have a significant impact on university-related research and health care employers. Ogletree Deakins will report on any new USCIS policy pronouncements on this topic.