By Michael Phulwani
The H-1B Program
US businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.
How USCIS determines if an H-1B petition is subject to the FY 2011 cap
USCIS uses the information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 14 through 15) to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”). Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a US master’s degree or higher.
FY 2011 H-1B cap count
Cap eligible petitions
This is the number of petitions that USCIS has accepted for this particular type of cap. It includes cases that have been approved or are still pending. It does not include petitions that have been denied.
The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the US-Chile and US-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.
When to file an FY 2011 H-1B cap-subject petition
USCIS begins accepting H-1B petitions on April 1, 2010 that are subject to the FY 2011 cap. Petitions subject to the FY 2011 cap must request a start date on or after October 1, 2010, the first day of the fiscal year. You may file an H-1B petition no more than six-months in advance of the requested start date. Petitions seeking an FY 2011 H-1B cap number with an October 1, 2010 start date can be filed no sooner than April 1, 2010.
Note: If you request a start date for a FY 2011 cap-subject H-1B petition that is prior to October 1, 2010 or submit a cap-subject petition prior to April 1, 2010, your petition will be rejected.
Organizing your H-1B package
Clearly label all H-1B cap cases, preferably in red ink, on the top margin of Form I-129. Use the following codes
l Regular Cap (65,000 regular cap cases, not including Chile/Singapore cap cases)
l C/S Cap (Chile/Singapore H-1B1s)
l US Master’s (20,000 exemption for beneficiaries with US master’s or higher degrees)
A separate check for each applicable filing fee (Form I-129, Premium Processing, Fraud Fee, and/or ACWIA fee) is preferred. Applicable fees should be stapled to the bottom right corner of the top document.
Preferred order of documents at time of submission
l Form I-907 (if filing for Premium Processing Service)
l Form G-28 (if represented by an attorney or accredited representative)
l Form I-129, Petition for a Nonimmigrant Worker
lH Classification Supple-ment to Form I-129
l H-1B Data Collection and Filing Fee Exemption Supple-ment
l All supporting documentation to establish eligibility
lProvide a Table of Contents for supporting documentation
l Tab items as listed in Table of Contents
l Arrival-Departure Record (Form I-94) if the beneficiary is in the US
l SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
l SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
l Form I-566 if the beneficiary is a current A or G nonimmigrant
l DOL certified LCA, Form ETA 9035
l Other supporting documentation.
l Duplicate copy of the petition, if necessary. Clearly identify the duplicate copy of the petition as “COPY”, so that it is not mistaken for a duplicate filing.