USCIS to Accept H-1B Petitions for FY 2010 Beginning April 1, 2009
Petitioners Are Reminded to Follow Regulatory Requirements
—U.S. Citizenship and Immigration Services (USCIS) today announced that it will begin accepting H-1B petitions subject to the fiscal year 2010 (FY 2010) cap on April 1, 2009. Cases will be considered accepted on the date that USCIS takes possession of the petition; not the date that the petition is postmarked.
The numerical limitation on H-1B petitions for fiscal year 2010 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. masters’ degree or higher are exempt from the fiscal year cap.
USCIS will monitor the number of petitions received and will notify the public of the date USCIS has received the necessary number of petitions to meet the H-1B cap, known as the "final receipt date." The date USCIS publishes information that the cap has been reached does not control the final receipt date. To ensure a fair system, USCIS will, if needed, randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.
H-1B petitions cannot be filed more than six months in advance of the requested start date. Petitions seeking an H-1B worker for an Oct. 1, 2009 start date can be filed no earlier than April 1, 2009.
Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H-1B categories seeking work dates starting in FY 2009 or 2010.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B petitioners should follow all regulatory requirements (8 CFR §214.2) as they prepare petitions to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including a processing worksheet, to assist in the completion and submission of a FY2010 H-1B petition. Those documents are available on the USCIS Web site.
U.S. 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.
For more information on USCIS and its programs, visit www.uscis.gov or contact the USCIS National Customer Service Center at (800) 375-5283.
– USCIS –
USCIS Announces New Requirements for Hiring H-1B Foreign Workers Changes Apply to Companies that Receive TARP Funding March 20, 2009
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced additional requirements for employers, who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category.
The new “Employ American Workers Act,” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application.
Questions and Answers: Extension of Post Completion Practical Training and F-1 Status for Eligible Students under the Cap Gap Regulations 04/01/09
These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2009 under the FY 2010 H-1B cap.
What is the H-1B cap?
The cap is the congressionally-mandated limit on the number of individuals who may be granted initial H-1B status or visas during each fiscal year. For FY 2010, the cap is 65,000. Not all H-1B beneficiaries are subject to the cap. Congress has provided that the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. masters’ degree or higher are exempt from the fiscal year cap. H-1B petitions filed on behalf of beneficiaries who will work at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations are exempt from the fiscal year cap. Generally, H-1B beneficiaries seeking to extend status and/or add employers are not subject to the cap.
What do Current F-1/H-1B Extension Regulations Allow?
Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time where an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period. This is referred to as filling the “cap gap”, meaning the regulations provide a way of filling the “gap” between F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students. An interim final rule published in the Federal Register last year authorized a cap gap extension for eligible students. See 73 FR 18944 (April 8, 2008) “Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions.”
How does “Cap-Gap” Occur?
An employer may not file, and USCIS may not accept, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change-of-status request, the earliest date that the student may start the approved H-1B employment is October 1. Consequently, F-1 students who do not qualify for a cap gap extension, and whose periods of authorized stay expires before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.
Which petitions and beneficiaries qualify for a cap gap extension?
H-1B petitions must be timely filed on behalf of an eligible F-1 student. “Timely filed” means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student's authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period.”)
Once a timely filing has been made, the automatic cap gap extension will begin and will continue until the H-1B process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30th unless the petition is denied or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice to prepare for and depart the United States. Students are strongly encouraged to stay in close communication with their petitioning employer during the cap gap extension period for status updates on the H-1B petition processing. A Form I-797, Notice of Action, with a valid receipt number, is evidence that the petition was filed and accepted.
How does a student covered under the cap gap extension obtain proof of continuing status?
The student should go to their Designated School Officer (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap gap I-20 showing an extension until June 1st. If the student’s petitioning employer receives a notice of selection from USCIS, the student should return to his or her DSO with a copy of the receipt notice, if possible, for issuance of a new cap gap I-20 indicating the continued extension of status.
Students can also check the Student and Exchange Visitor Program information from the Related Links section of this page.
What if the post-completion OPT expired before April 1? It appears that F-1 status would be extended, but would OPT also be extended?
A student who completed his or her post-completion OPT and who subsequently was in a valid grace period on April 1, would benefit from an automatic extension of his or her D/S admission under the cap gap, if the H-1B petition is filed during the H-1B acceptance period, which begins on April 1. The employment authorization, however, would not be extended automatically, because it already expired and the cap gap does not serve to reinstate or retroactively grant employment authorization.
Is a student who becomes eligible for an automatic extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?
If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap gap extension, the student will have the standard 60-day grace period (from notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States..
For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to discovery of a status violation. Such a student in any event is not eligible for the automatic cap gap extension. Similarly, the 60-day grace period and automatic cap gap extension would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.
May students travel outside the United States during a cap gap extension period and return in F-1 status?
The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired EAD issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. By definition, however, the EAD of an F-1 student covered under a cap gap extension is necessarily expired. As a result, if the student elects to travel outside the United States during a cap gap extension, he/she should be prepared to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his/her travel plans, accordingly.
Do the limits on unemployment time apply to students with a cap gap extension?
Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap gap extension.
If a student was not in an authorized period of OPT on the eligibility date for the cap gap extension, can the student work during the cap gap extension?
No. In order for a student to have employment authorization during the cap gap extension, the student must be in an approved period of post-completion OPT on the eligibility date.
May a student eligible for a cap-gap extension of status and employment authorization apply for a STEM OPT extension while he or she is in the cap-gap extension period?
Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., rejection, denial, or revocation of the H-1B petition), and the student enters the 60-day departure preparation period.
What is a STEM OPT extension?
F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT related to such a degree, may apply for a 17-month extension. F-1 students may obtain additional information about STEM extensions on the Student and Exchange Visitor Program website from the Related Links section of this page.
H1B Visa 2010 - What is Mini Lottery? (FYI only...not declared by USCIS this yr)
Term ‘Mini lottery’ is not officially used by USCIS. Mini lottery will be conducted by USCIS if H1B Quota is reached after April 7, 2009.
USCIS stated that if more H-1B petitions ( than available 85,000) were received within first 5 business days ( till April 7, 2009), there will be usual random lottery selection for entire 65,000 and same applies to 20,000 (Advanced Degree Cap). Until we hear from USCIS, there is no way to predict the number of applications submitted this
If H1B Quota Reached by April 7, 2009
If more than 65,000 H1B Visapetitions were received till April 7, 2009 - There will be random lottery to pick entire 65,000 visas
If more than 20,000 Advanced Degreepetitions were received, then there will be lottery to select entire 20,000 petitions.
If H1B Quota not reached by April 7, 2009
For this example lets assume, that not enough H1B Visapetitions were received for FY2010 by April 7, 2009.
USCIS will continue to receive petitions till cap is filled.
For example, if USCIS on April 10, 2009 receives enough number of applications to reach 65,000 and 20,000 cap, then mini lottery will be held. So, lottery will be conducted on H1B petitions received just on April 10, 2009.
How Does Mini Lottery Help?
H1B Visa applications submitted before April 7, 2009 will be be considered for H1B Approval and receipt number will be issued and lottery will be held only for small number of applications received on last day when cap was met. So, far there is no updates from USCIS.
WASHINGTON – April 8, 2009, USCIS announced it continues to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master’s degree or higher educational exemption cap.
Should USCIS receive the necessary number of petitions to meet the respective caps, it will issue an update to advise the public that, as of a certain date (the “final receipt date”), the respective FY 2010 H-1B caps have been met. The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date.
To ensure a fair system, USCIS may randomly select the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.
Petitions filed on behalf of current H-1B workers, who have been counted previously against the cap, will not count toward the congressionally mandated FY 2010 H-1B cap.
Therefore, USCIS will continue to process petitions filed to:
Extend the amount of time a current H-1B worker may remain in the United States.
Change the terms of employment for current H-1B workers.
Allow current H-1B workers to change employers.
Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B in General - U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.
Great news! If your petition has been submitted already, it wont go to lottery.
Lottery will be conducted only for those petitions received on "final receipt date" ... to select required number of petitions to meet the cap quota.
What is "final receipt date":- "final receipt date" is the day when the cap is reached or exceeded. USCIS will notify when the quota is reached as "final receipt date".
Petitions received before "final receipt date" are processed directly.
Congrats to all you guys who have applied for H1B this time.. specially those who were struggling to get H1B in general cap. . Seems Indian consultancy did not apply with the fear of getting screwed up. People applying through smaller consultancies with be benefited this time.
A USCIS spokesman said that based on preliminary numbers, the agency has "about half the petitions" it needs to meet the 2010 fiscal year cap of 65,000, but it is "just short of the 20,000 advanced degree cap."
Notes from AILA Liaison/USCIS Service Center Operations Call April 8, 2009 Cite as "AILA InfoNet Doc. No. 09040863 (posted Apr. 8, 2009)"
1. USCIS announced earlier today that they were still accepting petitions towards the FY2010 H-1B cap. Could USCIS provide any estimate as to the number of petitions already received? Answer: USCIS estimates that they have received approximately half of the petitions needed towards the general H-1B cap, and that they are just short of reaching the number of petitions needed towards the Master's cap.
2. When will the 15-day clock start for petitions filed under premium processing? Answer: The 15 calendar day period started on April 7, 2009.
3. When will receipts start being issued for cap-subject petitions? Answer: Receipts are being issued as of April 8, 2009.
4. There have been reports of some petitions being erroneously receipted prior to April 8, 2009. Is there any reason for concern? Answer: No, since the H-1B cap has not yet been reached, these petitions will all be counted towards the H-1B cap. Receipts previously issued remain valid. USCIS will be reviewing the internal process for receipting petitions.
USCIS Updates Count of FY2010 H-1B Petition Filings WASHINGTON April 9, 2009 â€” USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.
USCIS will provide regular updates as the processing of FY2010 H-1B petitions continue.
20,000 is extra quota for those who has higher degree. those with bachelor's degree can not apply in those quota , however, if regular quota has not been filled and masters quota is already exempted, both masters and regular quota will be utilized. so, people with masters or higher degree will also be considered under general quota.
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