H-1B Season Is Fast Approaching

Employers are reminded that, beginning April 1, 2012, U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B temporary worker petitions for foreign nationals requesting an employment start date on or after October 1, 2012.

For fiscal year 2012 (FY12), the H-1B cap was reached on January 26, 2011, including the 20,000 H-1B numbers reserved for foreign nationals possessing an advanced degree from a U.S. college or university. Although it is not expected that the H-1B cap for fiscal year 2013 (FY13) will be met within the first several months of filing, we encourage employers to start carefully considering their hiring needs for the coming year. Once the H-1B cap is reached, employers will not be able to obtain new H-1Bs until October 1, 2013. In addition, if employers have foreign national students working under Optional Practical Training (OPT), which will expire before October 1, 2012, the filing of an H-1B petition may be critical to extending their ability to work.

If you are considering the hiring of a foreign worker who will need H-1B sponsorship, please contact any of our immigration attorneys immediately to review your hiring plans. It is important to remember that the cap applies only to new H-1B cases, and not to extensions of H-1B status or a transfer of an H-1B visa from one employer to another. The cap does, however, affect those foreign nationals who are in H-1B status seeking to work for new employers, but who are currently exempt from the cap based on employment with a university or not-for-profit or governmental research organization.

Department of State Projects Retrogression for EB2 Indian and Chinese Citizens

On March 16, 2012, at a Midwest Regional Immigration Conference in Chicago, Charlie Oppenheim, chief of Visa Control and Reporting at the Department of State, informed participants that the immigrant visa numbers for India and China-mainland born Employment-Based Second-Preference (EB2) priority dates will retrogress to approximately August 2007. Mr. Oppenheim thought that this retrogression would take effect with either the May or June 2012 Visa Bulletin.

Summer Olympics Will Impact the U.S. Embassy in London

Visa services at the U.S. Embassy in London will be limited during the summer months of July and August for all nonimmigrant visa categories. All applicants are encouraged to apply for visas during the spring and early summer as appointment availability cannot be guaranteed. To facilitate this, the embassy has opened up the appointment calendar through the end of June. Appointments can be scheduled through the operator-assisted information service.

Travelers planning on entering the United States visa-free – by air or sea carrier, under the Visa Waiver Program – and who do not have travel authorization approval under the Electronic System for Travel Authorization (ESTA), are encouraged to register now for summer travel. If ESTA registration were to be denied, visas will be required.

The embassy also reports that its Visa Reissuance Program has been expanded to include H-1 visa applicants and their derivatives who are renewing a visa of the same classification that has expired in the last twelve months. Other qualifying criteria can be found at london.usembassy.gov/visa-reissuance.html. The Visa Reissuance Program continues to be available to O, P, J, and C-1/D visa applicants. Applicants must be physically present in the U.K. to utilize the Visa Reissuance Program and a consular officer reserves the right to request that an applicant appear in person for an interview after reviewing his or her application.

Visa Waiver Travelers Must Continue to Complete Form I-94W

The Department of Homeland Security is currently working with the airlines to fully automate the I-94W process. In the interim, until a full plan for automation is in place, all Visa Waiver Program (VWP) applicants applying for admission at a U.S. port of entry, including VWP travelers who have obtained travel authorization visa ESTA, must present a completed Form I-94W to U.S. Customs and Border Protection agents at the airports, border crossings or seaports.