On June 11, 2010, USCIS issued an update count of Fiscal Year 2011 cap-subject numbers. Approximately 22,200 H-1B cap-subject petitions counting towards the 65,000 general cap were receipted in by the Service. Only 9,400 H-1B petitions for aliens with advanced degrees from U.S. institutions have been receipted in counting towards the 20,000 Master’s cap.
DELAWARE IMMIGRATION LAWYER BLOG
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U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition
with the correct fee; not the date that the petition is postmarked. The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree
or higher are exempt from the H-1B cap.
USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select 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.
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 (800) 375-5283.
Employers who employ foreign worker in H-1b position are required to submit Labor Condition Application (LCA). Because one cannot submit an LCA earlier than six months prior to the beginning date of the period of intended employment (20 CFR § 655.730(b)), it is suggested by AILA that to get the LCA in hand before April 1, the employment start date on the LCA can be set for a date in September. Later, one can file the I-129 with a start date of October 1, but with an expiration date that coincides with the expiration date of the LCA.
Example:
LCA start date: 9/1/10
LCA end date: 8/31/13
Form I-129 start date: 10/1/10
Form I-129 end date: 8/31/13
As of September 25, 2009, approximately 46,700 H-1b cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1b petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, recoked or withdrawn.
Some decisions and cases support that a corporation even if it is owned and operated by a single person may hire that same individual in an H-1B capacity. This is based on the concept that the corporation is a separate legal entity fron its owner. However, self-sponsored H-1Bs are subject to careful review. The parties have to prove existence of a bona fide employer and employee relationship.
As of July 3, 2009, approximately 45,000 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemptions had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions.
The H-1B is a non-immigrant visa category in the United States which allows U.S. employers to employ foreign guest workers in specialty occupations.
Last year, the H-1B cap (65,000) was reached on the very first day. USCIS has to draw a lottery to determine which petitions would be selected for review and approval. The H-1B cap for individuals with a US Master degree (20,000) was reached on May 1, 2008, one month after the earliest date people can file the petition.
It is highly recommend that employers and employees get ready NOW so that the H-1B petition can be filed on the April 1, 2009.
Note: Not all cases are subject to the cap. H-1B Petitions that are “cap exempt” may be filed at any time during the year.
For more information on H-1B Cap, please read.
