Tips to Employers for the Imminent H-1B Filing Season

The Fiscal Year (FY) 2011 H-1B filing season is imminent, and it is once again time for employers to plan and organize for the April 1st H-1B cap rollout. Although the economic downturn of the past 18 months has resulted in a lesser demand for the H-1B work visa, employers should optimize their opportunity to secure the visa for valued workers where necessary. As a reminder, the H-1B cap for FY 2010 was met on December 21, 2009, more than nine months before the next fiscal year begins!

As background, current immigration law contains a "cap" of 65,000 new H-1B approvals each fiscal year, of which 6,800 are set aside for the H-1B1 visa program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. In addition to the standard H-1B cap availability of 58,200, the H-1B Visa Reform Act of 2004 makes available 20,000 additional H-1B numbers for foreign workers with a master's or higher degree from a U.S. academic institution. FY 2011 begins on October 1, 2010; the USCIS will begin accepting H-1B petitions for FY 2011 on April 1, 2010.

Key issues for employers to remember this year:

Identifying Petitions Ripe for Filing: Human Resources professionals should make a top priority of the process of identifying potential applicants. Of the potential beneficiaries for H-1B petitions, most critical are current employees or new hires with an immigration status that will not allow them to work continuously through October 1, 2010, or those for whom a change of status is necessary in planning for a possible green card. These may include: see table.

LCA Issues: Of primary concern this year is the lag time needed to obtain a Labor Condition Application (LCA). The LCA is an attestation made by an employer to the Department of Labor (DOL) about wages and working conditions, and is a prerequisite to each H-1B petition filing. LCAs may only be processed six months in advance of their requested start date, and may only be granted for a maximum period of three years. H-1B petitions may only be approved for a period covered by a valid LCA.

This year, employers must accommodate delays that arise from the DOL’s new system for processing LCAs, iCert. Introduced in April of 2009, iCert has added a significant amount of uncertainty into the LCA process. What used to be an instantaneous certification of the LCA now takes at least seven calendar days, and sometimes longer. As the DOL has sought to expand the iCert site to include additional programs, there has been a series of problems, including an inability to access pending or certified LCAs, and occasional outages.

In addition, USCIS will accept H-1B petitions with a certified LCA only. {On November 5, 2009, USCIS announced that it would accept H-1B petitions without certified LCAs only when an employer provided proof that the LCA was submitted more than seven days prior to the H-1B filing, and the petition could only be approved once the employer responded to a Request for Evidence by providing the certified LCA that was the same LCA as was pending at the time of H-1B petition filing. This temporary policy is in place for only 120 days, and is therefore expected to be phased out before the FY 2011 H-1B cap period begins. We will keep you apprised if the policy is extended.}

Since an H-1B petition cannot be filed until the LCA is certified, and the LCA process is subject to the new uncertainties and delays described above, an employer should allow for additional time to prepare the petition for filing.

Reminder: The following are not subject to the cap: H-1B petitions for amendment or extension of status, or transfer to a different employer, and requests for concurrent H-1B employment; petitions filed by exempt organizations, including institutions of higher education, nonprofit research organizations or entities related or affiliated with an institution of higher education, or a nonprofit research organization or governmental research organization; H-1B petitions for J-1 nonimmigrants who received a waiver of the two-year foreign residency requirement based on certain interested state or federal agency requests; and, H-1B petitions for beneficiaries who were counted against the cap within the preceding six years, unless the beneficiary is entitled to request a new six-year period.