MARCH 27th 2009 IMMIGRATION NEWSLETTER

H-1B Cap Lottery System Clarification for Fiscal Year 2010

USCIS has recently confirmed with the American Immigration Lawyers Association (“AILA”) that if they determine that the H-1B cap is reached within the first five (5) business days of April, which ends on April 7, 2009, then a “lottery” of all H-1B petitions received by the USCIS on those first five business days shall go into effect.

In the event the “lottery” is conducted, USCIS will then issue receipts for those cases which are selected, and the receipts will likely all have the same receipt date, that is, April 8, 2009. USCIS has indicated that guidance will be issued to explain that all petitions received between April 1, 2009, and April 7, 2009, will have the same receipt date. This is important for those F-1 beneficiaries whose optional practical training (“OPT”) will expire between April 1st and April 7th so that Designated School Officers (“DSO’s”) will know that an H-1B petition was timely filed and that a beneficiary may be eligible for cap-gap employment authorization or status based on the actual filing date.

However, in the event that the USCIS does not receive enough H-1B petitions within the first five (5) business days of April 2009 to reach the cap, they will continue to receive and accept petitions until the day upon which they conclude that a sufficient number of petitions is reached. USCIS will then conduct a “lottery” for those cases received on the last day of acceptance.

As a result of the current downturn in the U.S. economy, it is widely expected that the number of H-1B applications filed will fall far short of last year’s record number of nearly 160,000.

New Requirements for U.S. Companies That Receive TARP Funding and Hire H-1B Workers

There are now additional requirements for U.S. companies who receive funds through the Troubled Asset Relief Program (TARP) before they may hire a foreign national as a H-1B worker. Any company that has received these funds 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.

The Department of Labor’s Current PERM Processing Dates

On March 20, 2009, the U.S. Department of Labor (“DOL”) announced they were working on PERM labor certification cases with Priority Dates (initial case filing dates) in the following categories:

Cases with No Audit: July 2008
Cases with an Audit: September 2007
Cases wit an Appeal: June 2007