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UNITED STATES – Reminder of H-1B Filing Season – L-1 Visa Validity Changes

The filing period for new H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2013 begins tomorrow, Friday 30 March 2012. Also, the U.S. Department of State (DOS) is now authorized to issue L-1 visas with validity periods of up to five years depending on the maximum period allowed for the foreign national’s country of citizenship in the “visa reciprocity schedule”.

Reminder: H-1B Fiscal Year 2013 Filing Season – Get Ready for 2 April

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for financial year (FY) 2013 begins on Friday 30 March 2012. The U.S. Citizenship and Immigration Services (USCIS) will accept cap-subject H-1B petitions for FY 2013 on Monday 2 April 2012 for employment with a start date of 1 October 2012 or later.

Employers should identify current and future employees who will need H-1B status to be legally employed. Individuals currently employed as F-1 students or J-1 trainees, individuals seeking to change to H-1B from another work status (such as L-1, TN or E-3), and individuals outside of the United States commonly require new, cap-subject H-1Bs.

More About the H-1B Cap

A total of 85,000 new H-1Bs are made available each government fiscal year: 65,000 under the “regular cap” and 20,000 under the “Master’s cap” for those with advanced degrees from U.S. universities and colleges.

In previous years, the annual limit for new H-1Bs was exceeded within the first few days of filing, resulting in a random, computer-generated lottery for available visa numbers. However, since FY 2010, the cap has been reached later in the year, anywhere between the months of October and January.

Send in H-1B Applications Now!

Given that the cap hit a few months earlier in FY 2012 than in the previous two fiscal years, it is important that employers file all new H-1B petitions when the H-1B quota opens by mailing cap-subject petitions on Friday 30 March 2012 or Saturday 31 March 2012 for next-business-day delivery to USCIS on 2 April 2012. Cap-subject cases must be received by USCIS no later than Friday 6 April 2012 to be considered as having been filed within the first five business days of the filing period.

Under USCIS regulations, if a sufficient number of petitions to reach the cap is received in the first five business days of the filing season (from Monday 2 April 2012 up until Friday 6 April 2012) USCIS runs a lottery to determine the cases that are awarded quota numbers.

New Department of State Rule Delinks L-1 Visa and Petition Validity Periods

The U.S. Department of State (DOS) is now authorized to issue L-1 visas with validity periods of up to five years depending on the maximum period allowed for the foreign national’s country of citizenship in the “visa reciprocity schedule”. This is the case even if that period is longer than the validity dates on the underlying petition approved by the U.S. Citizenship and Immigration Services (USCIS). The visa reciprocity schedule reflects the reciprocal treatment the foreign applicant’s country accords U.S. nationals.

Previously, L visa issuance was limited to the validity period of the USCIS petition, which cannot exceed three years. The new DOS rule delinks visa and petition validity periods and permits an L-1 visa to be issued for the same period as determined in the reciprocity schedule. The rule applies to both individual and “blanket” L petitions.

Action Items

  • Immediately begin identifying persons for whom H-1B sponsorship will be needed and initiate any new H-1B petitions with your U.S. immigration attorneys as soon as possible.
  • Note the new validity periods for L-1 visas.

This news alert was prepared using information provided by Ogletree Deakins. This is a copyright publication. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without written permission from Ogletree Deakins.

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2017 Peregrine Immigration Management Ltd.