U.S. Department of Homeland Security (“DHS”), Citizenship and Immigration Services (“CIS”) began to accept H-1B cap petitions for employment for the Fiscal Year 2010-2011. As is always the case, the next several weeks will be highly scrutinized by H-1B employers, H-1B employees and U.S. immigration lawyers. We firmly believe that the H-1B usage will afford a glimpse about the U.S. economy for some months to come.
The CIS will begin to digest and adjudicate H-1B filings. The CIS will report on its website the number of H-1B visas that have been submitted and an analysis will be undertaken to determine what amount of the H-1B cap will have been met during the first several days of filing.
Many of the H-1B cases will have been filed by way of the premium processing procedure available. As in the past, the CIS will in-take cases, count them toward the cap and begin to adjudicate the cases.
As many are aware, if the H-1B quotas for bachelor’s level and advanced-degree cases are not reached within the first several days of submission, the CIS will continue to in-take cases until the quotas have been met.
If CIS reaches the 65,000 for bachelors or equivalent cases or 20,000 for U.S. masters during the first five business days of the H-1B in-take process, then the CIS is required to perform a lottery. The lottery is designed to select H-1B cases to meet the quotas. If the 20,000 quota for U.S. master’s degee filings are not met then the CIS will continue to accept such cases until sufficient numbers are received to exhaust the exemption. If more than 20,000 advanced-degree exemption-eligible cases are received during the initial five days but the standard cap has not been reached, the additional cases over and above the 20,000 are adjudicated as bachelor’s or equivalent cases under the cap.
We continue to remind our clients and friends of the Firm that some H-1B filings are exempt from the cap. Also, we continue to remind our clients that a detailed analysis should be undertaken with regard to whether or not a potential employee qualifies for the H-1B nonimmigrant visa classification or if that person may be able to qualify for another or a different nonimmigrant visa that would allow him or her to work in the U.S.