Less Than a Month to Go before the Beginning of the H-1B Filing Frenzy
By Anish Vashistha
Los Angeles , California
The 2012 Fiscal Year is fast approaching. The 2012 Fiscal Year begins October 1, 2011 and ends September 30, 2012. However, for those seeking H-1B status or H-1B visas, it is approaching even faster. Although most prospective H-1B beneficiaries can only begin their new employment on the first day of the new fiscal year, i.e. October 1, 2011, employers can begin filing H-1B petitions for prospective employees on April 1, 2011 because H-1B petitions can be filed up to six months before the first day of employment. Therefore, in less than a month, employers can start petitioning for employees whose employment will begin in October 2011.
The United States permits the approval of 65,000 H-1B petitions every fiscal year to individuals with a bachelor or equivalent degree for employment with for-profit and non-academic-institution employers. While the 65,000-petition cap does not apply for certain individuals with more advanced degrees or who are to be employed by certain non-profit or academic institutions, most individuals seeking an H-1B visa or H-1B status will be subject to this cap. For the 2009 Fiscal Year, this cap was met on April 1, 2008, the very first day such petitions could be filed, and even timely filed petitions had to be rejected because more than 65,000 petitions were submitted on April 1, 2009. Last year, the 2011 Fiscal Year, was much better with the cap being reached on January 26, 2011.
Nevertheless, with the cap being reached less than ten months into the 2011 Fiscal Year, many individuals who were to begin employment after July 26, 2011 have been forced to postpone their start date to October 1, 2011 and will be looking for their prospective employers to file their petitions on April 1, 2011, the first date that such petitions can be filed for the 2012 Fiscal Year. Moreover, individuals who have been in Occupational Practical Training status in the United States since receiving their bachelor degrees in 2010 will be looking for their new or prospective employers to file their H-1B petitions as soon as possible as well. Such employers will want to file their H-1B petitions before these individuals’ Occupational Practical Training status expire so that the individuals do not have to leave the United States and thereby temporarily break their employment until they are permitted to return to the United States on an approved H-1B visa when the 2012 Fiscal Year is about to begin.
Therefore, anyone who will be seeking H-1B status or an H-1B visa is well advised to ensure his or her prospective employer prepares and files the petition on or shortly after April 1, 2011, when the filing period for the 2012 Fiscal Year begins. With recent delays by the US Department of Labor in the processing of Labor Condition Applications and the practice of US Citizenship and Immigration Services of issuing requests for evidence or, worse, denials for even the smallest of inconsistencies or omissions in H-1B petitions, the need for such timely preparation cannot be overestimated. For these same reasons, competent legal counsel should be retained to ensure the process is completed not only quickly but also properly.
(Anish Vashistha is a licensed attorney who has helped several Pakistani nationals obtain or maintain legal status in the US. He may be contacted toll-free at 1 (866) 433-7016 or by email at Consult@HazanyLaw.com)