H-1B Filing Starts April 1

On April 1, 2011, the USCIS will start accepting cap-subject H-1B petitions for employment beginning on October 1, 2011. Cases are considered accepted on the date USCIS receives a properly filed petition and the correct fee has been submitted, not the date that the petition is postmarked.

There is an annual numerical cap of 85,000 on H-1B petitions, of which 20,000 is reserved for workers with an advanced degree from a U.S. university. For fiscal year 2011, the 20,000 cap was reached on December 24, 2010, while the 65,000 cap was reached on January 26, 2010.

There have been recent significant developments in the H-1B program that need to be highlighted.

First, the USCIS has introduced certain revisions in its Form I-129, the principal form for the H-1B petition. One change in the latest revised form pertains to additional questions for employers seeking to sponsor employees who will perform off-site work. In such cases, the new form asks whether the employer has included an itinerary with the petition. There is now also a specific section in the H-1B Data Collection Supplement asking the employer yes/no questions on off-site assignment.

Second, the revised Form I-129 also incorporates in the same supplement the fee increase imposed by Public Law 111-230, which was signed into law in August 2010. H-1B petitioners that employ 50 or more employees in the U.S. with more than 50% of its U.S. employees in H-1B or L status must pay an additional fee of $2,000.

Another development in the H-1B program that should not be overlooked is the “cap-gap” regulation. This regulation allows F-1 visa holders who are graduates of U.S. universities and are working under the optional practical training (OPT) program to remain in the U.S. and continue working until the H-1B petition filed on their behalf is approved and their status changes effective October 1st.

This regulation remedies the dilemma faced by F-1 students with OPT work authorization which ends one year after their graduation or usually in June. Under the new regulation, these graduates no longer need to depart the U.S. and re-enter after a few months in time for the start of their H-1B employment. The graduates’ status and work permit are automatically extended until USCIS approves the H-1B petition that was filed by the employer before the expiration of the OPT.

Very recently, the USCIS also announced that it is reviewing its policy on the H-1B cap exemption for “non-profit entities that are related to or affiliated with an institution of higher education”.  As an interim procedure, the agency will give deference to determinations made since June 6, 2006, that a non-profit entity is indeed related to or affiliated with an institution of higher education, but the burden remains on the petitioner to prove such relation or affiliation. The employer may do this by submitting a copy of a previously-approved cap-exempt petition and a copy of the approval notice.

The USCIS has also clarified that where the proposed H-1B employment will occur in more than one location, the state where the petitioner’s primary office is located will determine the appropriate Service Center to which the Form I-129 must be filed, regardless of the actual work locations.