USCIS announced on November 23, 2011 that the H-1B cap had been reached.  By November 22, had USCIS received 65,000 regular cap petitions and by October 19, 2011, the agency had received 20, 000 Master cap petition.   Employers have asked me the following questions in anticipation of, and in connection of, the H-1B Cap being reached, below are some of these questions and my answers.

Our H-1B Petition is pending with USCIS.   What happens to that Petition?

Answer: If you have received a receipt from USCIS showing your I-129 Petition for H-1B classification is filed, you have already received an H-1B number, and the cap being reached does not change anything for you or your intended H-1B employee.   USCIS will continue processing of your case without any change.

We need to file a new H-1B petition for a data analyst we really need to start as soon as possible.   What do we do now that the cap is reached?

Answer:  Now that the H-1B cap is reached, you do not have an option to proceed with an H-1B petition at this time.  Employers wishing to file new petitions for H-1B specialty positions need to wait until April 1, 2012.  If a new petition filed after April 1, 2012 is approved by USCIS, work in H-1B status may not begin earlier than October 1, 2012.  Hopefully, your data analyst is eligible for OPT or CPT employment authorization until after October 1, 2012.   If the intended H-1B worker is in the United States, make sure his or her immigration status is valid until the new petition can be filed, and make sure the worker does not violate his or her immigration status by working without authorization.   

What H-1B-Related Petitions Will USCIS accept Despite the H-1B Cap Being Reached?

Answer: According to USCIS, "petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed 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."

Corporate Immigration Attorney's Take: Better Economy + Get H-1B Savvy

Last year, the H-1B cap was reached on January 26.   This year, it was reached two months ahead of last year's.  This points to an improvement in economy: employers are willing to hire more H-1B Speciality occupations workers, such as IT and engineering professionals, despite the high cost of the process, having to pay the prevailing (i.e. higher) wage to these workers, and all the processing and compliance hurdles.   Just a few years ago, when the economy was booming, H-1B cap would open and close on April 1 of each year.   USCIS had to institute a lottery for H-1B numbers as employers used to file many more petitions than H-1B numbers available.  While I do not see this happening on April 1, 2012, we may see this very scenarios if the economy get significantly better in future years.  In 2012, with the economy getting its bearing, we may see employers hiring willing to hire more Speciality occupation workers and filing more H-1B petitions earlier in the fiscal year.  The H-1B process is complex; employers are advised to obtain H-1B training before they begin the process. The lead time to filing an H-1B petition may be several weeks; depending on how fast the employer provides information to its attorneys, how long it takes DOL to approve a Labor Condition Application, Prevailing Wage Application, and other factors.  Some employers missed the opportunity to file their H-1B petition under this year's cap because they did not understand the process.   Becoming savvy about H-1Bs is a must for an emploeyr who is interested in having an option to choose best specialty occupation workers.

Posted by Mira Mdivani
Corporate Immigration Attorney
The Mdivani Law Firm

Discaimer:
This article does not contain legal advice.  It is general background information.