April 1, 2010 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2011 H-1B cap. As most employers are aware, H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. We encourage employers to consider their H-1B cap cases now, and initiate the preparation of cap cases as soon as possible to ensure timely filing of cases.
Background
H-1B cap cases generally fall within two categories:
1. “Standard” Cap Petitions. These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 1, as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)
2. U.S. Advanced Degree Petitions. These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.
Last year, due to the economic recession and late-enacted legislation preventing certain employers from filing H-1B cap-subject petitions, USCIS received only half of the H-1B petitions needed to meet the FY 2010 cap in the first five days of filing, and the H-1B cap was not reached until December 21, 2009. However, it is anticipated that a far greater number of H-1B cap cases will be filed this year.
By USCIS regulation, if USCIS receives a sufficient number of petitions to reach the cap on any one of the first five business days of filing—this year, April 1 through April 7—USCIS may include all petitions filed on all five days in a random selection process. If more than 20,000 U.S. advanced degree petitions are received in the first five days of filing, USCIS will first conduct the random selection process for these petitions. U.S. advanced degree petitions not selected in this process will then be placed in the pool of standard cap petitions, and a second random selection process will be conducted for this combined group of petitions.
Those petitions not selected in either the U.S. advanced degree or standard cap random selection process will be rejected and the petition and filing fees will be returned to the petitioning employer.
2010 Filing Dates
By USCIS regulation, the earliest date a petitioner may file a FY 2011 H-1B cap-subject petition, which requests employment commencing on October 1, 2010, is April 1, 2010. This year, April 1 falls on a Thursday, meaning that FY 2011 H-1B cap cases may be sent to USCIS via overnight delivery service on Wednesday, March 31, 2010 to ensure delivery to USCIS on April 1, 2010. Although cases received by USCIS up until April 7 will be eligible for the random selection process should the lottery prove necessary, employers are strongly encouraged to file petitions by April 1 to ensure timely delivery of petitions to USCIS.
Labor Condition Applications and iCert Issues
After the April 2009 H-1B cap filing season, in May 2009, the Department of Labor (DOL) mandated use of a new web portal (“iCert”) for filing Labor Condition Applications. By USCIS regulation, before an H-1B petition may be filed, the petitioning employer must first file and obtain a certified Labor Condition Application (LCA) from DOL. Prior to implementation of iCert, LCA certification was nearly instantaneous. However, with implementation of iCert, the LCA review and certification process may take up to seven business days. In addition, DOL has experienced various technical problems with the iCert web portal, causing significant downtime resulting in filing and processing delays. With the H-1B cap season approaching, employers should allow additional time for H-1B petition preparation to account for LCA processing times and potential delays stemming from iCert technical problems. In addition, employers who have not previously filed LCAs using the iCert system must undergo a rigorous registration process before they can file LCAs using the system. Employers who are not yet registered on iCert should contact their designated Gibney representative immediately to ensure timely iCert registration to facilitate the filing of LCAs needed for H-1B cap-subject petitions.
Steps to Take Now
To the extent feasible, employers should now attempt to identify their H-1B cap candidates. Employers are encouraged to gather supporting documentation including education credentials (degree certificates and transcripts) and all applicable status documentation, including Forms I-20 and Employment Authorization Documents, issued to foreign nationals currently in the United States in F-1 student status. This documentation, along the company’s job description and salary data, should be forwarded to counsel as soon as possible for the purpose of both evaluating and preparing the H-1B petition and evaluating alternative immigration strategies. Ideally, preparation of H-1B cap cases should be initiated no later than March 1, 2010.
A Reminder - Who Is Not Subject to the Cap
As a reminder, certain H-1B petitions are not counted against the FY 2011 annual cap. These include the following:
- Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not now subject to the cap. This includes extension of status petitions for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
- Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.
H-1B Restrictions for TARP Recipients
Pursuant to the American Recovery and Reinvestment Act of 2009, enacted and effective on February 17, 2009, companies that received funding under Title I of the Emergency Economic Stabilization Act of 2008 (commonly referred to as “TARP fund recipients”) may face additional restrictions on filing H-1B petitions. These restrictions may apply to some H-1B cap-subject petitions, as well as some H-1B petitions described above that are not subject to the cap.
If you have any questions as to whether your company is subject to these restrictions, or about H-1B cap filings generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.
This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.