Haynes and Boone, LLP’s Immigration Practice Group reminds employers with a need for H-1B petitions that are subject to the annual numerical limit (“Cap-Subject”) that the annual cap for Financial Year 2012 is almost exhausted. United States Citizenship and Immigration Services (“USCIS”) has announced that 49,200 H-1B petitions have been received as of October 28, 2011, fast approaching the 65,000 cap. Further, the separate U.S. Masters degree cap – which provides an additional 20,000 petitions for those beneficiaries with a U.S. Masters degree – has been reached and these petitions will now count toward the general cap quota. Therefore, anticipated Cap-Subject H-1B petitions for Financial Year 2012 should be submitted to USCIS as soon as possible. Once the cap is reached, employers will not be able to submit new petitions until April 1, 2012 and new hires will not be able to start employment until October 1, 2012.

Assessing Your Cap-Subject H-1B Needs

Be careful not to overlook current employees or transferring employees who might need to file an H-1B for Fiscal Year 2012:

  • Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need a change of status to H-1B;
  • Determine whether any TN employees (NAFTA professionals) might want a H-1B to be eligible to apply for their adjustment of status to permanent resident;
  • Check whether your new hires who currently hold a H-1B have already been counted against the cap (note that anyone who is coming to you from an employer that is exempt from the numerical limit (“Cap-Exempt”) will not have been counted toward the cap and under that transfer, may now fall within the quota); and
  • Consider whether you employ someone in L-1B status (intra-company transferees with specialized knowledge) who might need to switch to a H-1B to gain an additional year of status.  

Cap-Exempt Situations

In some cases employers may be exempt from the numerical limit. These Cap-Exempt situations include: higher education institutions and related non-profits; non-profit or government research organizations; and beneficiaries who have held H-1B status in the last six years (but have not exhausted their entire six-year period).