As of July 22, 2011, U.S. Citizenship and Immigration Services (USCIS) has received approximately 21,600 H-1B petitions counted under the fiscal year 2012 annual cap of 65,000, and 13,300 under a special quota of 20,000 for individuals with U.S.-issued advanced degrees. These H-1Bs become available when the government’s 2012 fiscal year begins on October 1, 2011.

As of this same date last year, approximately 26,000 H-1B cap-subject petitions were received, and 11,300 H-1B petitions for individuals with advanced degrees.

The availability of H-1B visas offers opportunities to identify valued employees who might benefit from a conversion of their current status to H-1B. These include foreign nationals in the U.S. in TN status, H-1B1 (Singaporean and Chilean citizens) status, or E-3 (Australian citizens) status, particularly those who may want to pursue permanent residence. With the extensive priority date backlogs limiting immigrant visa availability, many of these employees, because of their countries of birth, will have to maintain their nonimmigrant status and work authorization for years before they will be eligible for permanent residence. Once the permanent residence process reaches a certain stage, these employees are discouraged from traveling abroad because TN, H-1B1, and E-3 classifications do not permit “dual intent”—the intent to work temporarily while at the same time also applying for permanent residence.

If the employee in TN, H-1B1, or E-3 status cannot file an I-485 application because of priority date backlogs, he or she may not be able to travel for several years. Conversion to H-1B status solves this problem, because H-1B status specifically allows for “dual intent” such that the employee may maintain this status while also pursuing permanent residence. Generally, employees who are affected by the priority date backlogs are those in EB-2 classification who were born in India or China, or anyone in EB-3 immigrant classification (not to be confused with E-3 nonimmigrant classification) regardless of nationality. In addition to the benefit of dual intent, H-1B status may also be extended beyond the usual six-year limit for those whose permanent residence processing is timely commenced.

Employees in L-1 status may also benefit from conversion to H-1B. Although the L-1 classification permits dual intent, L-1 extensions beyond the usual limits, unlike H-1Bs, are not permitted based on commencement of permanent residence processing. By converting to H-1B status, however, the employee becomes eligible for unlimited annual extensions as long as the permanent residence process is timely commenced.

While H-1Bs continue to be available, cap-subject employers should consider the benefits of converting employees in other status classifications to H-1B.