H-1B Filing Season Begins April 1

The next H-1B filing season begins April 1, 2012 for jobs with a start date no earlier than October 1, 2012.  Those who missed last year’s cap may have several alternatives available to them, and should explore all options before that date. Persons who are requesting extension of their stay, a change of employer from quota subject employer to quota subject employer, who have previously been counted against the quota in the past six years, who work for an institution of higher education or affiliated nonprofit, a nonprofit research organization or a government research organization, or who are engaged in concurrent employment with a cap subject and cap exempt employer, are not subject to the cap. Also not cap subject are certain persons who work on the premises of a quota exempt employer for a different entity, and J-1 graduate medical trainees who have received a waiver of the two year home residence requirement in exchange for a commitment to work at a VA hospital or in an underserved area.

Those who have missed the cap and do not fit one of the cap-exempt categories may have  other options.  A few examples follow.  F-1 students with Optional Practical Training (OPT) ending after April 1,  will receive automatic “cap-gap protection”, that is, an extension of their work authorization, until midnight September 30 (in such circumstance always contact the school which granted OPT immediately) as long as a cap subject petition with a start date of October 1 is filed on behalf of the student prior to the expiration date of OPT.  F students who are working in a STEM area and whose employer enrolls in E Verify will be eligible for a one-time STEM extension of 17 months. Others may pursue the option of remaining in student status or changing status to student and enrolling in a graduate course of study which permits immediate Curricular Practical Training. 

J-1 students finishing their course of study can receive up to thirty six months academic training.  Citizens of Mexico and Canada with occupations listed in the Trade NAFTA agreement can utilize TN visas. And persons with other types of work authorization or statuses (L, O, E, etc) may simply seek an extension of stay until October 1. Other options may be available and these will vary depending on individual circumstances.  Employers and persons affected by the cap are urged to consult an immigration attorney as soon as possible.