Employers Strongly Urged to Immediately Evaluate Needs for H-1B Visas under the FY 2011 H-1B Visa Quota
Employers are strongly advised to immediately evaluate their needs for H-1B workers for Fiscal Year (“FY”) 2011 (October 1, 2010 to September 30, 2011). In order to capture an H-1B visa under the annual quota, it is essential to begin preparing H-1B petitions at this time.
H-1B visas are limited by an annual quota. Every year for the last several years, the demand for H-1B temporary workers has exceeded the supply of visas under the quota. Regulations permit filing an H-1B petition up to six months before the start of the fiscal year. Accordingly, starting April 1, 2010 employers may file petitions for new H-1B workers requesting a start date of October 1, 2010.
Based on continuing demand and a strengthening economy, it is likely that H-1B visas will be exhausted prior to the end of the 2011 fiscal year. It is possible that H-1B visas will be exhausted during the initial filing period. Thus, it is imperative that employers plan early and submit their H-1B visa petitions on April 1, 2010.
H-1B visas are available for temporary employment of foreign nationals with a bachelor’s degree or equivalent to be employed in specialty occupations requiring the services of degreed individuals. The prospective employee must have completed all requirements for the degree at the time of filing the H-1B petition although it is not necessary to have received the actual diploma.
In order to file an H‑1B petition, the employer is required to obtain an approved labor condition application (“LCA”) from the U.S. Department of Labor (“DOL”). Please note that the DOL requires the use of “iCert”, a new portal for obtaining approved LCAs. Under the new “iCert” system, the approval of LCAs takes a minimum of seven (7) business days. Additionally, employers that have not filed an LCA on or after July 1, 2009 will experience further delays as they will be required to provide evidence to DOL demonstrating the company’s existence.
Employers should particularly review the possibility of filing an H-1B petition for any alien worker temporarily employed under the F-1 student visa category with Optional Practical Training (“OPT”) authorization. With limited exceptions, OPT employment authorization generally lasts no longer than 12 months. At the end of the 12 month interval of OPT time H-1B visas may not be available. Therefore, it is essential to plan ahead and file an H-1B petition on April 1 if the company wishes to continue the employment relationship.
Individuals employed by certain exempt organizations, those transferring from one H-1B employer to another and those extending existing H-1B status generally are not subject to the H-1B quota. Therefore, such workers may not be subject to the annual H-1B quota.
Employers unable to utilize the H-1B visa category may have other immigration remedies available under the Immigration & Nationality Act. We caution that the foregoing discussion is a very broad summary of a complex law. Availability of visas for any given situation depends on a wide range of individual circumstances. This information should not be construed as legal advice for any one immigration matter. We will continue to update you as this issue develops.
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Employers are strongly advised to immediately evaluate their needs for H-1B workers for Fiscal Year (“FY”) 
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