Tuesday, November 29, 2011

Dealing with the FY 2012 H-1B "cap full" situation

On November 23, 2011, United States Citizenship and Immigration Services (USCIS) announced that it had reached the H-1B “cap” of 65,000 for fiscal 2012—that is, for the fiscal year that ends on September 30, 2012. In addition, the “master’s degree” exemption, under which an additional 20,000 H-1B approvals are reserved for those with a master’s degree or higher, also has been exhausted for fiscal year 2012.


This news means that many foreign nationals who wish to work in H-1B status, and their employers, will have to wait until October 1, 2012 (when a new fiscal year begins) before the former can work (although, because H-1B regulations allow for the filing of petitions up to six months in advance of a requested start date, such foreign nationals, employers and their attorneys may begin filing for this October 1 start date as early as April 1, 2012)
However, certain foreign nationals still might be able to work in H-1B status even though the fiscal year 2012 cap has been reached. Three such ways are the following:
- Work for a “cap exempt” employer
Certain employing organizations are exempt from the H-1B cap, meaning that they can employ approved H-1B foreign nationals regardless of the cap situation. These organizations are
o Institutions of higher education
o A nonprofit entity related or affiliated with an institution of higher education
o Nonprofit research organization
o Government research organization

- Work AT a “cap exempt” employer
You need not be directly employed BY a cap exempt employer in order to be exempt from the cap yourself. You also can be exempt if you work AT such an employer—that is, even though you might be employed by a cap-subject employer. For example, you might be employed by a consulting company, and you would be performing your work at a client which is a cap-exempt organization. You and your employer would need to show a connection between your work and the main mission of the cap-exempt organization.

- Previously received H-1B status, within the past six years, at cap-subject employer
If you are in this situation, then you already have been counted against an earlier H-1B cap, and therefore do not need to be counted a second time. This situation could arise if, after having worked that first time in H-1B status, you returned to school, but now are seeking work again. It also arises if you are seeking an extension of H-1B status with your current cap-subject employer.

These methods will allow you to work in H-1B status even prior to October 1, 2012.