September 29, 2020

Volume X, Number 273

September 29, 2020

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September 28, 2020

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Fiscal Year 2012 H-1B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B cap was reached and that all cap-subject H-1B petitions received after November 22, 2011 will be rejected. H-1B petitions filed for those who have previously held H-1B status in the last six years, including requests for an extension of stay or a change of employer, are not subject to the cap. Petitions for those employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or governmental research organization, are also exempt from the annual cap. H-1B1 visa numbers are still available for nationals of Chile and Singapore.

USCIS will begin accepting H-1B petitions for FY2013 on April 2, 2012 for employment commencing on October 1, 2012 or later.

What Should Employers Do?

  • Employers should immediately inform their recruiters that candidates who will require H-1B sponsorship and are subject to the cap cannot commence employment in H-1B status until October 1, 2012, although other visa options may be available.
  • Employers should plan to file H-1B petitions to be received by USCIS on or after April 2, 2012 on behalf of the following foreign nationals whom they may wish to retain:
    • Recent graduates employed pursuant to F-1 optional practical training to ensure continued employment eligibility after expiration of their employment authorization documents.
    • Employees in the United States working in another nonimmigrant status and otherwise ineligible for continued authorization after October 1, 2012.
    • Candidates abroad subject to the annual H-1B limit and ineligible for another type of work-authorized status in the United States.
Copyright © 2020 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume I, Number 332

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Eleanor Pelta, Morgan Lewis, Immigration Lawyer
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A recognized leader in immigration and nationality law, Eleanor Pelta counsels clients on legal and strategic issues arising from the international movement of key personnel, from the individual transfer of high-ranking executives to high-volume transfers of expert staff. Her experience includes the use of blanket visa programs and the qualification of companies as “treaty investor” or “treaty trader” entities. Additionally, Eleanor counsels businesses on the immigration implications of corporate changes, such as mergers, acquisitions, downsizings, reductions in force,...

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Eric Bord, Immigration Attorney, Morgan Lewis
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Eric S. Bord counsels clients on corporate immigration issues involving the recruitment, hiring, transfer, and retention of personnel worldwide. He also advises businesses on compliance and risk management in connection with their global immigration programs. This includes counseling on compliance with I-9 and E-Verify rules, advising clients during immigration investigations, and conducting immigration due diligence for corporate transactions. Eric heads Morgan Lewis’s immigration compliance and risk management practice.

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A James Vazquez-Azpiri, Morgan Lewis, employment attorney
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A. James Vázquez-Azpiri counsels corporate clients on hiring and retaining foreign employees in his business immigration law practice. He advises businesses on labor certifications, specialty occupation petitions, and intracompany transfers. Clients rely on James for guidance through immigration law compliance during mergers, acquisitions, and corporate restructurings. He helps clients think and work proactively by providing them with traditional compliance policy reviews and audits, case management and litigation technology, and international executive travel and...

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