United States Reminder: FY 2011 H-1B Cap Filing Season Opens on April 1
United States Reminder: FY 2011 H-1B Cap Filing Season Opens on April 1
U.S. Citizenship and Immigration Services will begin accepting Fiscal Year (FY) 2011 H-1B cap petitions on April 1, 2010. Though the business immigration community does not anticipate the huge initial surge of filings and rapid cap exhaustion of past years, filing petitions on April 1, or at least during the first five business days of the filing period, is still the best option to ensure that your organization can meet its H-1B hiring needs for the coming fiscal year.
When Might the Cap Be Reached?
This year, the pace of cap usage during the upcoming filing season is difficult to predict because of several competing factors. The fiscal 2010 cap was reached just a few months ago, so there is not likely to be the kind of pent-up demand that employers have experienced in previous H-1B seasons. At the same time, improvements in the economy and in some industries could mean more cap petitions than last year’s slower overall filing rate would suggest. Even though cap usage was generally slow throughout most of the last fiscal year, there was a spike in quota number usage in November and December, suggesting a resurgence of demand.
Under agency regulations, if USCIS receives more than enough petitions to reach the 65,000 standard cap in the first five business days of the filing season – Thursday, April 1, 2010 through Wednesday, April 7, 2010 – it runs a lottery to select the cases that are awarded quota numbers. Eligible advanced-degree filings would continue to be accepted until sufficient numbers are received to exhaust the 20,000 exemption for these cases. If more than 20,000 advanced degree exemption-eligible cases are received during the initial five days, but the standard cap has not been reached, the otherwise exempt cases will simply spill over to the standard pool.
Cases that are not selected in the lottery are rejected and returned along with their filing fees. If the quota is not reached during the first five days, as occurred during the FY 2010 filing season, USCIS continues to accept filings until it determines that it has received enough cases to meet the cap for the year.
Planning for the Filing Season
If your organization is planning to petition for H-1B employment in FY 2011, contact your designated Fragomen professional to discuss the application process. As always, advance preparation is key. Timing is particularly important this year because of the uncertainty about numbers and the fact that the opening of the filing period falls during several holidays. Some important points to keep in mind:
- Gather supporting documentation promptly. Petition documentation should be gathered and prepared as soon as practicable, especially in light of USCIS’s new policies on documenting the employer-employee relationship in H-1B cases (discussed further here).
- Get certified LCAs as soon as possible. Because of new procedures and longer processing times, labor condition applications (LCAs) should be sought from the Department of Labor well in advance of April 1. USCIS’s narrow policy on accepting H-1B filings without certified LCAs will expire on March 9 — weeks before the April 1 opening of the filing season. (The agency had originally stated the policy would expire on March 4, but has since clarified that the last date for filing within this limited exception is March 9.)
- Be prepared for last-minute procedural changes. It is not unusual for the government to announce changes in the filing process shortly before the April 1 opening date. Employers should note, however, that proposed changes to the Form I-129 nonimmigrant worker petition, reported here, are still in the review process and, if ultimately approved, would not take effect until after the opening of the FY 2011 H-1B filing season.
Source: Fragomen
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