H1B FY 2012 - Accepting Petitions April 1, 2011

For all individuals who will be filing their H1B Petitions in FY 2012, USCIS will start accepting application starting April 1, 2011. Please note that cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. It is important that your case should reach USCIS in timely manner with the correct fees. This is especially important if USCIS would receive enough cap - subjected applications to reach cap on first five working days from April 1, 2011. In this case USCIS would usually held a lottery where application considered for processing in FY 2012 will be randomly selected. Please note that this year TARP funded companies are allowed to file H1B petitions for their employees. They no more have 'H1B Restrictions' that were imposed on them in FY 2009, FY 2010 and FY 2011. Based on this, it is difficult to predict how soon H1B CAP will be reached this year. Last year H1B CAP was not reached until 26th January 2011. The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt.

How H1B visa Lottery works?

How does the lottery work?

There is a limit to the number of first-time H1B cases that can be filed each year. These filings start on April 1, 2011 for the FY2012 quota or "cap." The USCIS allow a minimum window of five business days in April each year for the USCIS to receive H1B cap-subject cases. Thus, if the cap limit is reached during any of the first five days, a random lottery selection then will be conducted to determine which cases filed within the five-day timeframe will be eligible for a cap number. The cases then are reviewed and, if approved, generally are counted against the cap.

What happens if the H1B cap is not met within 5 business days?

If the cap is not met during the first five days, then filings will be accepted for additional days, until the cap is met. There will be a lottery, then, of the cases received on the day the cap is met, only. All earlier cases would not be subject to this lottery, and would be eligible for a cap number, if approved.

What happens to the U.S. masters' quota H1B cap filings during random lottery?

Based upon FY 2010 procedures, the lottery actually is conducted in two steps. There are two separate cap allocations. There are 20,000 "advanced degree" cap exemptions, for cases filed for foreign nationals who have completed U.S. masters' degrees or above. This is separate from the regular cap of 65,000 (minus a set aside for certain treaty cases). The USCIS will first determine if advanced-degree cap has been met in the first five days. If so, a lottery will be conducted for those cases. Any cases not selected would be eligible then for consideration and subject to the H1B random lottery under the regular cap. If the regular cap is reached in the first five days, then a lottery would be conducted consisting of all the regular cases filed in that timeframe, as well as any advanced-degree cases that are not selected in the advanced-degree lottery. (If only the regular cap is met in the first five days, then the lottery of those cases would not include advanced degree cases.)
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When can we expect to find out if the quota is met?

The USCIS has made improvements to its counting and lottery system, so that announcements about the number of filings normally are issued fairly quickly. They provide information on the number of cases received within about a week, and also advised of the date set for the lottery.
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Will there be a lottery this year?

There is no likelihood that lottery will be held during first five-days of opening of FY 2012 H1B season. We do expect CAP to reach early this year because company who received TARP funds are eligible to file H1B petitions for their employees with less 'H1B Restrictions'

What were the 'H1B Restrictions' for TARP funded companies?

Covered companies are not allowed to “hire” an H-1B worker unless the company has complied with additional LCA attestations which are generally imposed on H-1B dependent employers. These additional attestations are:

(1) that the employer has, prior to filing the H-1B petition, taken good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage that is at least as high as that required under law to be offered to the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies and is equally or better qualified for the position; and

(2) that the employer has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.

Other topics on H1B that first time filers should read.

• H1B 'Cap Exempt' Visa as an Option?

USCIS to Start Accepting H-1B Petitions for FY 2012 on April 1, 2011 March 18, 2011 WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) announced today it will start accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others. The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt. USCIS will monitor the number of H-1B petitions received and will notify the public of the date when the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, it may on the final receipt date randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap. In addition to petitions filed on behalf of people with U.S. master’s degrees or higher, certain other petitions are exempt from the congressionally mandated cap. Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at: Institutions of higher education or related or affiliated nonprofit entities; Nonprofit research organizations; or Governmental research organizations. 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 Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FY 2011 or 2012. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count towards the H-1B cap. 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; and Allow current H-1B workers to work concurrently in a second H-1B position. H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, to avoid delays in processing and possible requests for evidence. USCIS has posted on its website detailed information, including a processing worksheet, to assist in the completion and submission of a FY2012 H-1B petition. For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283. Last updated:03/18/2011

Fact Sheet on RFEs and NOID

USCIS Announces Flexible Response Times for Notices of Intent to Deny and Requests for Evidence

On April 12, 2007, the Department of Homeland Security (DHS) transmitted the final rule Removal of the Standardized Request for Evidence Processing Timeframe to the Federal Register (FR). The rule will take effect on June 16, 2007. This rule amends DHS regulations to give U.S. Citizenship and Immigration Services (USCIS) flexibility in setting the time allowed for immigration benefit applicants and petitioners to respond to a Request for Evidence (RFE) or to a Notice of Intent to Deny (NOID). This change does not apply to asylum cases, to which a separate set of regulations apply.

The amended rule makes the following key changes and clarifications:

Flexible Response Times to RFEs Permitted

Regardless of the type of evidence requested, the old regulation required USCIS to set an inflexible 12 week period for applicants or petitioners to respond to an RFE. The new regulation permits USCIS to set flexible deadlines. Deadlines will depend on the complexity of cases and types of applications or petitions filed. For example, when requesting readily available or missing initial evidence, USCIS can set a response time much shorter than 12 weeks. On the other hand, USCIS can provide the full 12 week response period for more difficult to obtain evidence.

No Extensions to Submit Responses to RFEs or NOIDs

Regardless of the evidence requested, USCIS has never allowed extensions beyond the maximum 12 week deadline for RFEs and the 30 day deadline for NOIDs. That bar does not change, even though the new rule allows USCIS to set deadlines shorter than those maximums. For example, under the new regulation, USCIS may issue an RFE that gives an applicant 30 days to submit a photo. USCIS will not grant an extension of that 30 day period. Failure to timely respond to the RFE may lead to denial of the application or petition.

When Evidence Submitted With The Application or Petition Does Not Show Eligibility

When initially submitted evidence does not show eligibility, the new regulation allows USCIS to deny the application or petition. As always, USCIS may request that the applicant or petitioner submit additional evidence within a specified time period or may notify the applicant or petitioner that USCIS intends to deny the application or petition. To avoid denial, USCIS urges applicants and petitioners to file complete applications with all of the required initial evidence. The initial evidence for each application and petition type is clearly listed on the form instructions and in the regulations.

Reasons for Issuing a NOID

USCIS may issue a NOID when there is evidence of ineligibility for immigration benefits and is required to issue a NOID when there is negative evidence that the applicant or petitioner does not know about. An applicant or petitioner may respond to the NOID by submitting evidence to disprove the negative information.

If There Is No Response to an RFE or a NOID

The new regulation provides USCIS three options if it does not receive a response to an RFE or a NOID. USCIS may:

• find that the application or petition has been abandoned and, if so, deny it;

• deny the application or petition based on the evidence already received; or

• deny the application or petition for both reasons.

When an Applicant or Petitioner Does Not Appear for a Required Appointment

If an applicant or petitioner fails to appear for biometrics capture, interview or any other required in-person process, USCIS may deny the application or petition as abandoned. However, USCIS may not do so if, prior to the scheduled appointment time, it receives a timely-filed change of address or request to reschedule and decides that the failure to appear is excusable. In such cases, USCIS will reschedule the appointment. USCIS reminds applicants and petitioners that they are required to file an AR-11 change of address form within ten days of their move.

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H1B FY 2010 : Applicants are receiving I-797 approval valid for less than 3 years

There are few reports that applicants who applied for H1B FY 2010 are receiving I-797 Approval with visa validity less than 3 years. This is especially true for the cases filed by staffing and consulting companies.

This is particularly seen with cases, if an applicant has received a request for evidence (RFE) requesting a client letter and project details. Successively, if petitioner fails to submit a project detail stating that beneficiary's services will be needed for next 3 years, individual is more prone to get approval with visa valid for number of years as stated in the clients letter.

In order to avoid such cases, please make sure that your client letter states that services is required for next 3 years. Even if an individual receives an approval with visa valid for less than 3 years, he can extend his visa for the period of next project in the same way as done with regular H1B extension. But this will add to bearing cost of H1B visa for an employer.

H1B FY 2010 : Few Applicants are Receiving RFE

Many H1B applicants for fiscal year 2010 are receiving request for evidence (RFE). Most of the reported RFEs are regarding the use of old I-129 form (Petition for Non-Immigrant Worker). Recently released form has an additional section to check “Has petitioner received TARP funding”. Senate recently passed a new bill enforcing tougher regulations on TARP funded companies, thus making it difficult to hire H1B workers.

Many lawyers, in order to beat the rush during the first week of April neglected the release of new I-129 form. USCIS is now sending RFEs to such petitioners requesting them to provide information if company is TARP funded. But thats not something one should worry about as providing information for such RFEs is straight forward.

H1B aspirants for FY 2010, who are planning to apply in future should make sure that their lawyer use recent I-129 form. Though replying back to such RFEs is easy, but this will definitely chew up good amount of lead-time, making wait longer for an approval.

Other RFEs reported are those received by few consulting and staffing companies.

1) Employment agreement between Petitioner and Beneficiary;
2) Service Agreement between Petitioner and end-Client;
3) Statement of Work/Purchase Order for Beneficiary indicating his services are required for the next 3 years;
4) Petitioners' 2008 Federal Income Tax returns

Looking at above RFEs, it seems that many consulting and staffing companies would have tough time getting approvals for their beneficiaries. Such petitioners would need SOW/PO from client stating that their service is required for entire tenure of H1B visa. In addition, if there is an applicant who is not on project, it may not be possible for him to get documents associated to RFE number 2.

It's bizarre on USCIS/DOL part to expect client letters, as there may be no client who can foretell the need for next 3 years. Most of these projects are on need-basis and can be as short as 3-5 months. As long as petitioner is paying his employee regularly on H1B visa, is financially sound and not abusing the system, beneficiary should be eligible to receive H1B visa.

H1B applicants for fiscal year 2010, who had applied through consulting and staffing companies should start working on above documents as gathering them would take some time. The time frame given by USCIS is not that long to respond, hence its better to be organized with all your documents.