U.S. Citizenship and Immigration Services ("CIS")

CIS will start accepting H-1B petitions for fiscal year 2011 (October 1, 2010 - September 30, 2011) on April 1, 2010, and it will not accept H-1B cap filings before such time. In prior years, the H-1B cap for the upcoming fiscal year was met on the first day of filing; in 2009, the H-1B cap for FY2010 was met on December 21, 2009. If the FY2011 H-1B cap is met during the first few days of filing, CIS is expected to adopt a "random lottery" process to allocate the H-1B cap numbers. Accordingly, employers are encouraged to plan ahead for H-1B filings.

As a background, the H-1B category is designed for foreign professional workers holding a university degree, and it authorizes the foreign professional to work in the United States in a "specialty occupation." For most professional positions, the H-1B classification is the only visa category available. The earliest H-1B employment start date will be October 1, 2010. The numerical limitation ("cap") on new H-1Bs for FY2011 is 65,000. Exemptions to the H-1B cap include: H-1B amendment/extension petitions, H-1B transfer (change of employer) petitions, and H-1B petitions filed by higher educational institutions and related non-profit entities. The special exemption from the H-1B cap for foreign nationals who possess a master's degree or higher from a U.S. university will continue in FY2011. This exemption is limited to 20,000 H-1Bs per fiscal year.

Our Immigration Practice Group will file H-1B petitions for FY2011 on March 31, 2010 (for CIS receipt on April 1, 2010). However, due to time constraints placed by third parties (for example, academic evaluation services and the U.S. Department of Labor), the Immigration Practice Group must receive all necessary information and documents from clients by March 1, 2010. While we cannot guarantee that an H-1B petition will be accepted by CIS for count against the FY2011 H-1B cap, we encourage employers to plan ahead to maximize the likelihood of timely H-1B cap filings. We will continue to provide updates regarding the FY2011 H-1B cap as we receive notice from CIS.

*On January 15, 2010, CIS announced that it has designated Temporary Protected Status "TPS" for eligible nationals of Haiti. The registration process for TPS for Haitian nationals will begin upon publication in the Federal Register; publication is anticipated this week. TPS may be conferred to certain individuals who are temporarily unable to safely return to their home country because of ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions. During the period for which a country has been designated for TPS, CIS allows such beneficiaries to remain in the US and obtain work authorization. TPS does not, however, generally lead to permanent resident status (or "green card" status). We will continue to provide updates regarding the TPS registration period and procedures as we receive notice from CIS.

This article was prepared by Fulbright's Immigration Practice Group. Should you have any questions concerning the above or any other employment-based immigration matter, please do not hesitate to contact Cindy Kang, Partner and Head of the Immigration and Nationality Practice Group (214 855 7499 or ckang@fulbright.com); Jacquelyn P. Maroney; Brenda J. Oliver (202 662 4717 or boliver@fulbright.com) or Benjamin J. Schatz.