The annual H1b filings rush begins today (April 1st) for petitions that are subject to the numerical cap of 65,000. There is an exemption from the cap for the first 20,000 petitions involving beneficiaries who received advanced degrees from US colleges and universities.
Also, the procedure informally known as "cap gap" has been made permanent by regulation. "Cap gap" is a special provision in the law designed to benefit students holding optional practical training (OPT) status, but whose status will expire between April 1st and October 1st. If a petition is filed on behalf of such a beneficiary, and the petition is accepted under the quota, the beneficiary's OPT status is automatically extended by law through September 30th. This allows such beneficiaries to remain in the United States in lawful status, with work authorization, until their H1B status becomes effective.
No one expects the quota to be exhausted within the first few days following April 1st. At the same time, no one expects the quota to remain open as long as it did this past year, when it did not close until mid-December. We will have to wait and see how many petitions are filed in the initial rush. Last year, we saw approximately 40,000 filings (not counting the advanced degree exemptions) in the first few days. After that initial rush, filings slowed to a crawl and did not pick up again until October.
Part of the reason the quota stayed open as long as it did last year was the unprecedented rate of denials issued by the USCIS. The 2009 H1B filings rush occurred just as the USCIS was getting into strict enforcement of their new policies concerning third party placement of H1B workers. We believe that this was the reason for the very high level of petition denials.
This year, things appear to have stabilized. The USCIS is being somewhat less doctrinaire about this issue and willing to accept alternatives to their earlier insistence that petitioners provide end-user letters. This is particularly true for cases filed with the Vermont service center, where the adjudicators appear to be far better trained and more reasonable in their approach.
Because the rate of denials has gone down, we can expect to see quota numbers used up at a much faster pace than last year. We would not be surprised to see the entire quota exhausted by sometime in May. This is a reflection of both the lower rate of denials for petitions filed as well as the recovering economy resulting in more petitions being filed. Also, many beneficiaries who qualified for extended OPT two years ago, and did not have H1B petitions filed on their behalf last year, must file this year or go out of status.
Please keep in mind that it now takes a week to process a labor condition application (LCA) and an H1B petition cannot be filed without a certified LCA. This means that if you plan to file H1B petitions later, as the quota begins to fill, you may find yourself on the outside looking in if you can't get your LCA approved in time.
If you are tentative about a specific employee or job, we can work with you to help you file LCAs for possible subsequent H1B petition filings. This way, you will have the LCA in hand in case you decide you want to file the petition on short notice. We do not charge for assisting our employer clients with this type of precautionary filing.
If you are interested in learning more about what we can do to assist your company with H1B filings, please click here for more information. Also, please feel free to call us (818-914-6482) to talk about your case or cases. We never charge for talking to people about prospective representation. Also, if you become a client of our office, know that you and your employer or employees are welcome to call us whenever you have a question. We never charge for talking to our clients.
