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FY 2010 H-1B Cap Filing Season Starts Today
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U.S. Citizenship and Immigration Services (USCIS) on Wednesday, April 1, begin to accept petitions for employment in Fiscal Year (FY) 2010, starting on October 1, 2009. Despite the economic slowdown, the USCIS expects to receive more than enough petitions to reach the 65,000 standard H-1B quota and the quota of 20,000 for foreign nationals holding advanced degrees from U.S. universities. Employers filing H-1B petitions for FY 2010 employment should be aware of important USCIS procedures affecting the H-1B case intake process, as well as rules affecting foreign students changing status to H-1B.

How does the H-1B Lottery Process Work?

For the past several years, when H-1B petition receipts have exceeded the annual quotas for the category, USCIS has used a computerized lottery system to choose the H-1B petitions. Under current procedures, if USCIS receives more than enough petitions to meet the standard and advanced-degree quotas in the first five business days of the filing period – this year, from Wednesday, April 1 to Tuesday, April 7 – it will conduct a cap lottery using the petitions received during that time period. If both H-1B quotas are reached during the first five business days, the agency is expected to run the advanced-degree lottery first. Advanced-degree cases not selected in the first lottery would then be placed into a second lottery that would also include standard H-1B cap cases.

If the USCIS do not receive enough petitions to reach the H-1B quota within the first five business days, it will continue to accept H-1B cap petitions until the quotas are met. The date on which a quota is eventually reached will be declared the "final receipt date" – i.e., the last date on which USCIS will accept cases filed against that particular quota. USCIS will then run a lottery to choose among the petitions received on that date. Cases received before the final receipt date would not be subject to the one-day lottery.

Employers should be aware that not all the H-1B petitions are restricted towards the annual quotas and the cap lottery. Amended petitions and petitions for an extension of stay, concurrent employment or a change in employer for existing H-1B workers are not subject to the cap.

Additionally, petitions for new H-1B employment are not subject to the cap if the foreign national will be employed at an institution of higher education or a related or affiliated nonprofit entity, at a nonprofit research organization or at a governmental research organization. A foreign national may also be exempt from the cap if he or she has previously held H-1B status, but used less than his or her six-year maximum.

Note: Petitions for H-1B employment that is not subject to the cap may be filed at any time up to six months before the prospective employment start date.

What are the Additional H-1B Hiring Requirements for Companies that Received TARP Funding?

As per the recent USCIS’ announcement, employers who have received funds under the Troubled Assets Recovery Program (TARP) or under Section 13 of the Federal Reserve Act (FRA) are required to comply with additional requirements before they may hire a foreign national to work in the H-1B specialty occupation category.

In these cases, the employer must attest that it took good faith steps to recruit U.S. workers for the position for which the H-1B worker is sought and that no U.S. worker was displaced by the H-1B worker in an essentially equivalent position. The additional H-1B requirements for TARP or FRA Section 13 recipients were put in place by the Employ American Workers Act (EAWA). EAWA took effect on February 17, 2009 and will sunset after two years.

Note: These additional hiring requirements do not apply to petitions that are filed on behalf of current employees seeking an extension of their H-1B stay or a change of status to H-1B.

Processing and Receipting Delays Possible

USCIS, as always had happened; this time too, is expecting to receive a very large number of H-1B petitions in the first five business days of the filing season. It could take several weeks or more for the agency to open up each filing, conduct the selection lotteries and issue filing receipts.

It may also take several days or more for USCIS to announce that the quotas have been reached. In previous years, USCIS did not consistently follow courier service receiving procedures, issue filing receipts or present fee checks for payment, making it difficult to determine whether a case had been received or accepted for processing. Similar problems could occur this year.

Premium Processing Likely to Be Put on Hold Briefly After FY 2010 Filing Period Closes

USCIS could decide to put premium processing of H-1B petitions on hold at some point during the FY 2010 filing season. In previous years, USCIS allowed H-1B cap petitions to be filed for premium processing, but stopped the 15-day premium processing clock after the filing period closed, to give the agency time to finish initial case intake and run the cap selection lottery. The 15-day clock was then restarted once initial processing was completed. Premium processing could be treated in the same way this year, but USCIS has not made any official announcement.

Cap-Gap Relief for F-1 Students Changing Status to H-1B

USCIS has created ongoing "cap gap" relief for F-1 students changing status to H-1B. The cap gap relief allows F-1 students whose period of stay will expire before the start date of an H-1B cap petition to remain in the United States and, in some cases, continue to work through the beginning of their H-1B employment on October 1.

An F-1 student will have his or her period of stay automatically extended through September 30, 2009 if he or she is the beneficiary of a timely-filed and approved H-1B petition and request for change of status to H-1B. The automatic extension also applies to any F-2 dependents. The F-1 student's optional practical training (OPT) and employment authorization will also be extended, as long as he or she is in a period of valid OPT on the date that USCIS receives the H-1B petition and request for change of status.

Note: If the student has not been granted OPT or the OPT period expired before the filing of the H-1B petition, the student's lawful status will be extended, but he or she will not be authorized to work until the H-1B petition takes effect on October 1. If the student's H-1B petition is later rejected, denied or revoked, the automatic extension of status and any work authorization will be terminated.

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