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Employers: It is not too early to start thinking About the FY 2011 H-1B Season

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United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the Fiscal Year 2011 (FY 2011) cap on April 1, 2010. Cases are considered accepted on the date that the USCIS takes possession of the petition; not the date that the petition is postmarked. If you are an employer considering petitioning for an H-1B employee in April 2010, it is a good idea to get started early as the H-1B visa cap is predicted to be used up much faster than in FY 2010.

Although earlier in 2009, H-1B petitions were sluggish, the uptick in H-1B petitions increased dramatically from October to December last year suggesting that there is an improvement in the economy and that demand for H-1B workers is likely to continue into the next H-1B season. It is, therefore, recommended that employers assess their current and future H-1B hiring needs earlier rather than later so that they do not get left out if the demand for H-1B visas continues once the filing season opens on April 1, 2010. Also getting started earlier, will help employers get a head start to prepare for increased H-1B evidence requirements now to be imposed by the USCIS.

The numerical limitation on H-1B petitions for Fiscal Year 2011 is likely to remain 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. masters’ degree or higher are exempt from the fiscal year cap. USCIS will monitor the number of petitions received and will notify the public of the date USCIS has received the necessary number of petitions to meet the H-1B cap, known as the “final receipt date.”

The date USCIS publishes information that the cap has been reached does not control the final receipt date. To ensure a fair system, USCIS randomly selects the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date. H-1B petitions cannot be filed more than six months in advance of the requested start date.

Petitions seeking an H-1B worker for an Oct. 1, 2010 start date can be filed no earlier than April 1, 2010. Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States.
  • Change the terms of employment for current H-1B workers. Allow current H-1B workers to change employers.
  • Allow current H-1B workers to work concurrently in a second H-1B position.

Written by MithrasLaw

January 14, 2010 at 7:47 pm

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