Immigration Update
USCIS accepting new H-1B visa petitions as of April 1, 2011
April 1, 2011 will be the first day USCIS will accept new petitions for H-1B Professional Worker Visas for the upcoming fiscal year, which begins October 1, 2011. USCIS has a cap of 65,000 H-1B visas (as well as an additional 20,000 for U.S. Masters degree holders), available per CIS fiscal year which runs from October 1 to September 30. H-1B visas are currently not available (for non cap- exempt employers) as the 2011 H-1B Cap was met on January 27, 2011. However as of April 1st, USCIS will begin accepting new petitions for the new fiscal year beginning October 1, 2011.
It is important to file as soon as possible as there is no way to predict with certainty the outcome of this year’s cap filing. For fiscal years 2008 and 2009, the H-1B filings went into a lottery as USCIS received (within the first week of filing) more petitions than there were H-1B numbers available. Petitions not filed in the beginning of April those years were not eligible for the H-1B lottery.
While it is not likely that this year’s H-1B numbers will go to an immediate lottery due to current economic conditions, the limited number of H-1Bs should always be taken into consideration. If an immediate lottery is necessary, USCIS will accept H-1B petitions through April 7, 2011 and the lottery will be drawn from those petitions. After that, H-1B visa petitions will not be accepted until April 1, 2012.
Therefore, to the extent possible, MVA recommends that U.S. employers think ahead in terms of hiring needs. Now is the appropriate time to consider whether your company may be interested in offering a position to a foreign national professional worker or a foreign national currently employed pursuant to temporary employment authorization, such as a foreign student working under Optional Practical Training or TN status under NAFTA.
Please note that current H-1B holders employed at for-profit companies have already been counted against the cap. Only foreign nationals changing from a different status or porting their H-1B from an exempt institution to a cap-subject institution must have their H-1B petition filed during the April 1, 2011 filing window. If you are unsure if a potential hire's current H-1B is for an exempt institution, please let us know and we can advise accordingly.
Preparation of the H-1B petition requires documentation collection and as well as filing a Labor Condition Application with U.S. Department of Labor. Please plan ahead to allow enough time for the LCA to be certified before the case must be filed. Please contact your MVA Immigration Team Contact as soon as possible to initiate an April H-1B filing or to ask us to review credentials to determine a candidate's eligibility for an H-1B visa.