H-1B Temporary Worker Cap for 2011 Reached on January 26, 2011

U.S. Citizenship and Immigration Services (USCIS) announced that on 1/26/2011 it had received a sufficient number of H-1B temporary worker petitions to reach the statutory 65,000 cap for the Federal fiscal year (FY) 2011. January 26, 2011 is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

Properly filed cases will be considered received on the date that USCIS physically received the petition, not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after 1/26/2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on1/26/2011. It will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Also, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the FY2011 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.

H-1B Filing for Fiscal Year 2012 will begin on 4/1/2011

The earliest new H-1B cap subject petitions for FY2012 may be filed is 4/1/2011 for an employment start date of 10/1/2011. Employers are advised to review their H-1B hiring needs and plan accordingly. Under the "CAP GAP" rule, students in F-1 status who have valid Optional Practical Training (OPT) work authorization, at the time an H-1B petition on their behalf is accepted for filing by USCIS, may continue to work until 10/1/2011, pursuant to their Employment Authorization Documents (EAD), even if their EADs expire prior to that date.

Temporary Suspension of Export Control Questions for H-1B, H-1B1, L-1 and O Temporary Worker Petitions to end on February 20, 2011

In late 2010, USCIS issued a new Form I-129 petition (edition date 11/23/2010 to be used beginning 12/23/2010) which required employers who file H-1B, H-1B1, L and O-1 temporary foreign worker petitions to complete Part 6 containing export control/ITAR questions. On 12/22/10, USCIS, at the urging of the Department of Commerce, suspended the requirement to complete the export control/ITAR questions in order to give petitioners time to establish the necessary internal processes to satisfy the attestation requirements. Employers are reminded that the temporary suspension ends on 2/20/2011 and to make sure they have systems in effect to be able to determine whether the intended foreign employee will have access to information covered under the export control/ITAR rules and, if so, whether steps have been made to obtain the necessary license or limit the employee's access to restricted information.