April 1, 2011 marked the first day the United States Citizenship and Immigration Services (“USCIS”) began accepting H-1B petitions filed on behalf of nonimmigrant workers for the 2012 fiscal year (“FY 2012”). On April 8, 2011, USCIS released its first accounting of the number of petitions received that count toward the congressionally mandated annual cap.
The H-1B visa classification is for temporary employment of foreign professionals in specialty occupations, including but not limited to, information technology professionals, business analysts, financial managers, engineers, architects, and allied health professionals such as physical therapists, as well as fashion models. There is a yearly statutory cap of 65,000 H-1B approved petitions for the general category, of which 6,800 are reserved for Chile and Singapore Free Trade H-1B visas, resulting in only 58,200 for all other nationalities. There is an additional quota of 20,000 for foreign professionals with advanced degrees (Master’s degrees or higher) from U.S. institutions.
USCIS reported that as of April 7th approximately 5,900 H-1B petitions counting toward the 65,000 cap and approximately 4,500 petitions counting toward the 20,000 cap exemption for individuals with advanced degrees had been received.
Over the last several years, with the exception of 2009 and 2010, H-1B filings have greatly exceeded the statutory quota, causing USCIS to invoke a lottery system at the start of the filing period. In FY2011, H-1B filings did not meet the statutory quota until January 26, 2011. However, it is unknown at this time how the number of H-1B filings for FY 2012 will compare to the number of H-1B petitions received by USCIS in the past.
Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until December 31, 2014.
Exemptions from the annual quota cap may apply in instances of: requests for extensions of stay for current H-1B workers; amendments to H-1B petitions requesting a change in the terms of employment for current H-1B workers; and change of employer petitions for individuals already in H-1B status. In addition, petitions for new H-1B employment are not subject to the annual cap if the foreign professional will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. As such, employers who desire to hire H-1B aliens subject to the statutory quota should consult with immigration counsel as soon as possible to carefully analyze those circumstances in which cap exemptions might be claimed.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken which might be influenced by this publication.
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