U.S. Citizenship and Immigration Services announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011.  USCIS is notifying the public that Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap.  USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

On Dec. 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.  Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. 

Accordingly, USCIS will continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the U.S.;
• 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.
• allow H-1b visas for employees of higher education or companies affiliated with higher education.

The first date an H-1b can be filed for the 2012 fiscal year which begins October 1, 2011, is April 1, 2011.

Other options for those with college degrees in professional jobs are as follows:

TN Visa for Canadian and Mexican professionals in more than 30 occupations.

E-3 professional visa for Australians

H-1b for Chile and Singapore citizens

L-1 A management and executive level transferees for companies with affiliated or subsidiary branches in US and at least one other nation.

L-1B specialized employee transfers for companies with affiliated or subsidiary branches in US and at least one other nation.

O-1 Extraordinary Ability employees in business, arts, athletics, science and education,

H-3 Training visa for up to 2 years

J-1 Training or Intern visa. Up to 18 months. Some are subject to 2 year home residency requirement for certain countries and certain professions.

E-2 Treaty Investor visa. Permits investor and essential employees from countries with treaties with United States to establish companies in US.

E-1 Treaty Trader visa. Permits establishment of trading companies with treaties with US.

Despite a recessed economy, US companies that require hiring from a global talent pool to compete have been hamstringed by an arbitrary numerical cap for professional workers. Until Congress passes legislation that increases the H-1B quota to meet the realities of our global economy, U.S. employers must seek other alternatives. The strategies discussed are only a few of many options available to employers. Now more than ever, it is critical for employers to start planning early with their immigration counsel to explore options specific to their needs and to ensure that the H-1B cap does not hinder their hiring goals and ability to supplement their workforce with professional foreign workers.

Feel free to contact me if you would like to explore your options.

The H-1B VISA DEADLINE IS APPROACHING!  If you are or may be involved in visa application process for a foreign national professional, you are nearing critical H-1b visa decision points that can result in the inability to make the hire for more than 8 months.  It would be wise to seriously consider your visa strategy now.  Projections show H-1b visa cap levels will be reached within two months, which will have a lasting impact throughout 2011.  In the longer term, overall employment is heating up, which means caps could be hit much faster in the next couple of years.   Proper strategy, which involves both taking advantage of all visas options as well as planning ahead, can help you avoid problems.  Now is the time to take a look at your situation given what’s ahead.

Steps that you can take to obtain your visa before the cap hits this year.

One of the longest delays in obtaining H-1b visas, this year, has been the 4-6 week period it takes to obtain a prevailing wage determination (“PWD”) from the National Prevailing Wage Center (“NPC”). While it is a good idea to obtain the PWD from the NPC. Getting one gives your case “Safe Harbor” meaning  the Department of Labor (“DOL”) will deem the PWD correct as to the amount of the wage. However, it is not mandatory and with the looming cap, you may consider utilizing DOL regulations that state if the employer is unable to wait…for the prevailing wage… or for the CO and/or BALCA to issue a decsion …the employer may rely on other legitimate sources.

Doing your own calculations for the prevailing wage is not without risk of challenge or denial, but waiting for the PWD from NPC may mean missing out on the visa altogether or until October of 2012. Please feel free to contact me if you would like to learn more about how to do a PWD on your own.

But the cap may come earlier next year as the economy is showing trends of improvement for 2011 and 2012 – There are many signs the hiring market is heating up.  Surveys of US employers point to increase employment stability, and predictions for Q1 of 2011 are expected to rise 9% over same quarter last year, and 5% in Q4 of 2010. 

Tax extension expected to increase hiring as well – Further, the December 17, 2010 extension of tax cuts was done with the intent to spur economic growth.  Opinions vary on the level of the impact, but almost everyone agrees it create growth in at least 2011 and 2012.  Of course, certain sectors may be impacted differently, but the news seems to be good.

Higher employment impact visa applications – Visa applications levels experience more volatility than overall employment – as employment goes down, visa applications decrease significantly.  The reverse is also true – as employment increases in 2011, visa applications are expected to increase more dramatically.   Are you prepared?

Visa caps projections for next few months -  As of December 10, the USCIS reported 52,400 or 81% of 65,000 cap on H1-b’s was taken.  Last year the cap was reached in late January, and is a little behind the pace this year.  What does that mean?

Visa cap projections for 2011… PLAN AHEAD!   Any H1-b applications can work now until the cap is reached.  But, after that, your application will apply to the April 1, 2011.  Keep in mind this is for October 2011 employment.  Assuming the cap is again reached in late January, any employees submitted February through September can’t begin until October 1st, 2011!

There may be some other options such as the L-1A for multinational executives or managers or L-1B for specialized skilled employees from international companies, the E-1 for traders from countries with treaties with US, E-2 for investors from countries with treaties with the US or E-3 for Australian professionals, the TN for Canadian or Mexican professionals, H-3 for trainees, J-1 for interns and certain trainees, O-1 for extraordinary ability foreign nationals. But, these visas do not fit everyone or every job.

Are you ready?

Are you considering a hire now and wan’t to get a visa prior to the cap?
Do you have strategies to speed the prevailing wage determination process?
Are you prepared if the cap is to hit earlier next year or the following?
Once the cap hits, do you know when other visa options may be an option?

THE BOTTOMLINE… H-1b visa caps will hit much earlier in 2011 and 2012.   You may recall two years and three years ago when there was such a backlog that more visas were filed on the first date available, April 1, then visas available for the entire year.   It may not reach that level next year, but what if it caps after 3-4 months?   In that situation, being aware of cap limits is not nearly enough!  Caps put a premium on knowledge of the full range of visa strategy options.