Corporate Immigration Law News

U.S. Citizenship and Immigration Services (“USCIS”) has recently announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (“FY”) 2011.  As such, USCIS notified the public that January 26, 2011, was the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The “final receipt date” is the date upon which USCIS has determined that it has received enough H-1B cap-subject petitions to reach the Congressionally-mandated cap of 65,000 new H-1B visas. Properly filed cases are considered received on the date that USCIS actually receives the petition; not the date that the petition was postmarked.  USCIS  has advised that it will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after January 26, 2011.

As for those petitions filed on January 26, USCIS will apply a computer-generated random selection process to select petitions needed to meet the cap.  USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying filing fees.

Given the exhaustion of H-1B visa numbers for fiscal year 2011, employers are left with no choice but to consider alternative visa options for employing qualified foreign-born professionals. While there are a limited number of options presented from the “alphabet soup” of temporary visa categories available, there are, indeed, viable options for potential hires for whom you cannot (or will not) wait until October 1, 2011 to employ.

For a survey of viable alternatives to the H-1B visa, please click here to review our article in the New Jersey Law Journal, Employment And Immigration Law Regional General Counsel Supplement.

USCIS has announced that, as of December 17, 2010, approximately 53,900 H-1B cap-subject petitions were receipted.  Additionally, USCIS receipted 19,700 H-1B petitions for aliens with advanced degrees. Taking into account the numbers reserved by treaty for nationals of Singapore and Chile (up to 6,800), there may be less than 5,000 new H-1B visa numbers available for this fiscal year ending September 30, 2011.

Therefore, if your business is considering the sponsorship of an H-1B worker subject to the H-1B cap (e.g., a foreign student who is in F-1 status and working pursuant to OPT or any other foreign national who is not presently in H-1B status), you should strongly consider filing such petition as soon as possible before the H-1B visa numbers are exhausted.  Otherwise, you will be left to wait until October 1, 2011 before the new H-1B quota becomes available.

It is important to note that H-1B visa extensions of stay and H-1B visa transfers (from one eligible U.S. employer to another) are not subject to the annual H-1B cap and, therefore, will continue to be regularly accepted by USCIS.  Likewise, H-1B nonimmigrants who work at (but not necessarily for) eligible research institutions, universities and other qualifying non-profit facilities may also be excluded from the numerical H-1B visa cap.

If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.