News Update - March 26, 2011USCIS Announces Commencement of H-1B Petition Processing for FY 2012 on April 1, 2011; Also Announces Interim Policy on Affiliation/Relation Based H-1B Cap ExemptionsU.S. Citizenship and Immigration Services (USCIS) announced in a press release on March 18, 2011, that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011. Cases are accepted on the date USCIS receives the properly filed petition for which the correct fee has been submitted, not the date that the petition is postmarked. USCIS will limit the number of petitions received and will notify the public of the date on which USCIS has received the necessary number of petitions to meet the H-1B cap. The cap for FY 2011 is 65,000 with the exemption of the initial 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher. USCIS will reject petitions received after the final receipt day. In a separate statement on March 16, 2011, USCIS announced an interim policy for petitions for new H-1B employment claiming exemption from the annual cap on ground that the beneficiaries will work at institutions of higher education or related to or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. Until now, the narrow interpretation of “affiliation” had resulted in visa applications for extensions as well as for new visas being denied. Therefore, USCIS said it was taking temporary measures to give deference to such prior H-1B determinations made since June 6, 2006. However, the petitioner must prove that the organization had previously received approvals of its request for H-1B cap exemption as a non-profit entity that was related to or affiliated with an institution of higher education. USCIS will accept copies of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) as evidence along with previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Nonetheless, USCIS suggested that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006. These interim measures will remain in place temporarily. H-1B petitioners should follow all requirements as they prepare petitions to avoid delays in processing and possible requests for evidence.
† The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2011 Alan Lee, Esq.
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