However, if you are a nonimmigrant, especially an individual seeking temporary
work authorization in a specialty occupation, or an employer seeking to hire
one of these professional and skilled individuals, April 1st is as
important as April 15th. Why? Because each year on April 1st
Employers seeking H-1B status for "cap subject" positions that will begin on
October 1, the beginning of the USCIS fiscal year, race to file  H-1B petitions on behalf of prospective
employees, or employees who are working pursuant to F-1 optional practical
training status. Each year Employers and foreign national employees alike hold
their breath and collectively ask: will these limited number of visas—85,000 in
total for those subject to the H-1B cap—run out before I get "my" number?  Each year the answer is the same: We
don't know.

To assist the general
public in gauging the usage of these limited H-1B numbers, on April 8th,
USCIS issued the following press release:

USCIS is monitoring
the number of petitions received that count toward the congressionally mandated
annual H-1B cap of 65,000 and the 20,000 U.S. master's degree or higher cap

USCIS has received
approximately 5,900 H-1B petitions counting toward the 65,000 cap, and
approximately 4,500 petitions toward the 20,000 cap exemption for individuals
with advanced degrees.

U.S. businesses use
the H-1B program to employ foreign workers in specialty occupations that
require theoretical or technical expertise. Such workers include scientists,
engineers and computer programmers, among others.

USCIS will provide
regular updates on the processing of FY 2012 H-1B petitions. These updates and
helpful filing information can be found at USCIS's website highlighting the
H-1B program. Should USCIS receive the number of petitions needed to meet the
cap, it will issue an update advising the public that the FY 2012 H-1B cap has
been met as of a certain date, known as the "final receipt date."

The date USCIS
informs the public that the cap has been reached may differ from the actual
final receipt date.

To ensure a fair
system, USCIS may, on the final receipt date, randomly select the number of
petitions that will be considered for final inclusion within the cap. The
agency will reject petitions subject to the cap that are not selected, as well
as those received after the final receipt date. Whether a petition is received
by the final receipt date will be based on the date USCIS physically receives
the petition, not the date that the petition has been postmarked.

Cases for premium
processing (faster processing of certain employment-based petitions and
applications) of H-1B petitions filed during an initial five-day filing window
are undergoing a 15-day processing period that began April 7. For all other
H-1B petitions filed for premium processing, the processing period begins on
the date that the petition is physically received at the correct USCIS Service

Meanwhile, petitions
filed by employers who are exempt from the cap, as well as petitions filed on
behalf of current H-1B workers who have been counted previously against the cap
within the past six years, will not count toward the cap.

Certainly, the amount of H-1B visas
requested by U.S. businesses is a reflection of the economy.  Although the federal government reports
that employers are beginning to hire again what remains to be seen is how many
of these employers will begin to hire H-1B workers? The answer, again, is as
unclear as it has been in past years. Given such uncertainty, it is always best
to file an H-1B petition as close to April 1st as possible rather
than play the nerve wrecking guessing game.

Main Topic: 
Plain Text Author: 
Wendy Hess