On April 1, 2011 US Citizenship and Immigration Services (USCIS) will begin accepting filings of H-1B visa petitions for employment in the fiscal year 2012 (FY 2012). Employers should prepare to start filing H-1B petitions on April 1 for new and existing employees who will be eligible for a first-time H-1B visa to begin employment in FY 2012 (that is, on or after October 1, 2011).

Congress has mandated an annual cap of 65,000 H-1B visas, with an additional 20,000 visas available for beneficiaries with advanced degrees from US colleges or universities. It should be noted that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap will not be included toward the annual cap set by Congress. Furthermore, pursuant to the free trade agreements with Chile and Singapore, 6,800 H-1B visas are available exclusively to Chile and Singapore nationals. This effectively reduces the total allotment of available H-1B visas to 58,200.

As a reminder, an interim final rule issued in 2008 remains in effect and provides "cap-gap" relief for F-1 students with pending H-1B petitions. Specifically, F-1 student visa holders who have received work authorization, pursuant to Optional Practical Training (OPT), may extend their authorized period of stay and work authorization as long as they are beneficiaries of timely filed H-1B petitions granted by, or pending with, USCIS prior to the expiration of the OPT.

As the economy continued to recover, the 2011 fiscal year 58,200 allotment actually lasted until January 26, 2011. In years past, however, the 58,200 allotment has been exhausted within a day, as has the allotment of 20,000 visas for beneficiaries with advanced degrees from US universities. Demand will likely be greater than last year for H-1B visas, so employers are encouraged to file on April 1, or soon thereafter, if they need to employ foreign workers in the H-1B category.

Coincidentally, this may be the last year that employers have to navigate through the mad dash for new H-1B visas. USCIS recently published a proposed rule that would establish a new system whereby employers seeking to petition for H-1B workers subject to the statutory cap would first register electronically with USCIS. Before the petition filing period begins, USCIS would select the number of registrations predicted to exhaust all available visas. Employers would then file petitions only for the selected registrations. This system is not proposed to take effect until 2012.

The proposed rule has been posted to the Federal Register for public viewing. USCIS is soliciting formal comments on the proposed rule until May 2, 2011 through www.regulations.gov.