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USCIS Reaches Fiscal Year 2012 H-1B Cap

In a press release November 23, 2011 USCIS announced to the public that it received enough H-1B petitions to reach the 65,000 statutory cap for Fiscal Year (FY) 2012. USCIS noted that November 22, 2011 marked the final receipt date for specialty occupation petitions requesting a start date in FY 2012. FY 2012 is the government fiscal year October 1, 2011 through September 30 2012. Any employer seeking a new specialty occupation worker will need to wait until on or about April 1, 2012 to petition for H-1B with an employment start date of October 1, 2012 (FY 2013).

Any properly filed case will be considered received on the date that the USCIS physically receives the case not the date of post mark. Any case received after November 22, 2011 will be rejected.

More than 20,000 H-1B petitions filed under the cap exempt provisions for the 'advanced degree' exception have also been received, however, USCIS will continue to accept and process petitions that are otherwise exempt the cap along with cases that have been previously counted against the cap. The petitions USCIS will continue to accept are petitions 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.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers or computer programmers.

The H-1B Visa Program

H-1B visas allow employers in the U.S. to temporarily employ foreign workers for up to six years in fields that require 'specialty occupations.' Specialty occupations are jobs that 'require theoretical or technical expertise in specialized fields.' Some examples of such occupations include those in law, medicine, accounting, science, engineering, and computer programming. The jobs generally require the employees to have the equivalent of a U.S. bachelor's degree and, for some jobs, appropriate licensure. H-1B visas allow the worker and his or her spouse and children under 21 years old to live in the U.S. during the duration of the visa. An H-1B visa is a 'dual-intent' visa, ('L' visas also permit dual intent), which means, unlike with other nonimmigrant visas, the government will not deny the H-B visa if the employee intends to become a permanent resident (green card).

Filing an H-B Visa Petition

An employer cannot begin the H-1B visa process more than six months before the start date of the visa. To obtain an H-1B visa (status) and employer must:

  • Complete a Form I-129 petition, focusing special attention on the H Classification Supplement and the H-B Data Collection and Filing Fee Exemption Supplemen
  • Ensure each form has an original signature, preferably in blue ink
  • Enclose a check or money order for the appropriate fee amount
  • Attach the required additional documentation
  • Mail the petition to the appropriate Service Center for processing

Some of the additional documentation that the employer needs to submit with the Form I-129 includes:

  • Labor Conditional Application (LCA) Form ETA 9035
  • Evidence of the employee's educational background
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