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Klasko Predicts the H-1B Cap will be Met by the Holidays


As of December 4, 2009, USCIS is reporting that approximately 61,100 H-1B cap-subject petitions had been filed.

USCIS also has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap.  Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000.

Based on the numbers periodically released by USCIS, the firm is predicting that the H-1B cap may be reached before or around the Christmas holiday.  As of November 13, just over 55,000 of the 65,000 H-1B petitions available for this fiscal year (from now until October 1, 2010) have been used.  Approximately 6,100 petitions have been filed in the last 3 weeks alone.  As reported by Ron Klasko, USCIS officials on a panel at a NY AILA Conference informed the audience that the pace of H-1B filings had increased significantly in the past two weeks – about 2000 petitions were received in the short week before Thanksgiving alone.

Complicating matters is the new iCERT system used by the Department of Labor (DOL) to process labor condition applications (LCAs).  The DOL originally anticipated that it could take up to seven business days to certify the LCA under the iCert system.  However, the system has experienced problems that result in LCA certification delays.  The most prevalent problem of the new system is the denial of LCAs when the DOL cannot verify the employer’s Federal Employment Identification Number (FEIN).  This occurs even on LCAs filed by employers who regularly submitted applications on the old system with no issues.  Upon the receipt of an LCA denial notification from the DOL employers are instructed to provide the DOL with proof of the FEIN number through a specified email address.  Once the employer locates this documentation and sends it to the DOL, it is taking up to ten additional business days to resolve the FEIN problem.  Once the employer receives confirmation from the DOL that the FEIN issue has been resolved, they can then resubmit the LCA through the iCert system.  This resubmission is, once again, subject to the seven day processing time.

Based on these LCA delays and the pace of H-1B filings with USCIS, employers should contact the firm immediately if they wish to sponsor an H-1B cap-subject employee for this fiscal year.  After the H-1B numbers are exhausted, employers will be left with limited alternatives for hiring skilled foreign nationals when US workers are unavailable.  Once the H-1B cap is met, the earliest an employer can file for an H-1B petition will be April 1, 2010 for a position with a start date of October 1, 2010.

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