The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2012 begins on April 1, 2011. 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. April 1 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 U.S. Citizenship and Immigration Services on April 1.) 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.
In FY 2008 and FY 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. FY 2010 filing began April 1, 2009, but the cap was not reached until December 21, 2009. In FY 2011, the cap was reached even later, on January 26, 2011. 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 time required to file and receive certification of the prerequisite Labor Condition Application (LCA). Although there has been discussion of a new, pre-filing registration requirement (see the October 2010 issue of the Immigration eAuthority), no new procedure has been created as yet.