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

H1B Cap FY 2010 could lead to much needed Reform

For five business days beginning Wednesday, April 1st, United States Citizenship and Immigration Services (USCIS) started accepting petitions for the H-1B for the 2010 fiscal year, which begins Oct. 1. In recent years, visa limits were reached on the first days of the application period.Last year, USCIS published a new rule according to which they will select H1-B visa application received during first five business days through H1B lottery process if cap limit is reached on first day of application. Successively after five business days if cap is not reached, any applications received on the day cap is reached will be used for H1B lottery process. It should be noted that though there is a notion from the last year, that USCIS will accept application for first five business days for H1B lottery if cap is reached anytime within first five days, but this statement has not been explicitly published anywhere this year on USCIS website.

There were wide reports that the H-1B cap filing for FY 2010 will be much lighter this year because of current economic recession and hiring freeze in the companies. With companies laying off so many workers and stringent laws imposed on companies getting bailout money through Trouble Asset Relief Program (TARP), you would expect that H1B cap for FY 2010 will last for few months. But recent article published in New York Times suggests that there still may be rush for H1B visa application this year even as the demands seems to dip. This may be due to large amount of backlog from applicants from last two years, who could not get H1B because of lottery in FY 2009 and FY 2008. Failure to get selected through H1B lottery last year forced these applicants to work on Optional Practical Training (OPT) for more than a year, thanks to the new rule published last year on OPT extension for 17 months for STEM (Science, Technological, Mathematics and Engineering) students. Needless to say big Indian technological companies, who could not get visas last year will try for them this year.

There have been recent reports that Department of Labor (DOL) has become strict on many US based small consulting companies who exploit H1B visa program by filing many H1B application with no legitimate client requirements. These companies are in strict scrutiny by DOL and hopefully will be filing less worker visas this year. There is also information that these small companies to surmount any explanation to DOL this year, plan to file many H1B under Consular Processing (CP). Consular Processing requires applicant to obtain H1B visa stamped before they could work for an employer who filed a petition. This way they will only provide I-797 to their employees when they will have legitimate requirements from the clients.

It has been 3 official days since Cap has been open but there is no formal release on H1B cap count for FY 2010 on USCIS website. There are unconfirmed reports or rumors that on the first day, the agency had received less than 40,000 out of the total cap of 75,820 excluding the free trade special H-1B1 cap numbers for Singapore and Chile (Oh Law firm). Considering the fact that most of the employers had sent in cap petitions on the first day of April, the volume can be considered much lighter this year than that of last year. Those who have filed or will file before the end of the day of April 7, 2009 have good chances to get their H1B application accepted. Only cases that will be subject to the lottery will be those received on final receipt day when cap is reached.

Looking back at those 40,000 numbers for the first day of H1B filing, they seems a lot in this market condition. If cap is reached within few days from now, then there is a specific need to overhaul H1B visa Program plus immediate need to ban some of the participating companies who abuse the system left and right. It is less likely in this economic recession that there is such a high demand for H1B visas when there are so many right candidates available in America especially when unemployment rate hit 8.3% in March 2009.

There is no doubt that America needs talented and skilled workers for continuous economic growth but this should be achieved with rational means and by bringing reform in H1B system through strict regulations by DOL. Major reform in the system also calls for total H1B CAP exempt for International students who have earned Masters and PhD from American Universities thus preventing reverse brain drain of talented individuals who contribute to continuous development of technology in the country. These individuals not only include STEM majors but also Business majors who add so much to American Financial System.