News reports have summarized the passage by the House of Representatives of HR 3012, the Fairness for High-Skilled Immigrants Act, by 389 votes for to 15 votes against.  The bill now goes to the Senate, where supporters had hoped the bipartisan support in the House would help obtain quick passage.

What Problem is HR 3012 Addressing?

Under current law, no more than 7% of the visas issued per year in any one immigrant visa category can go to natives of any one country.  On the employment-based immigrant visa side, natives of India and China face longer waits than natives of other countries, because natives of those countries send more high-skilled immigrants to the US than any other country.  On the family-based immigrant visa side, natives of Mexico and the Philippines face longer waits than natives of other countries, because there are more immigrants and US citizens with family ties to those countries than there are to other countries. (more…)

Late Wednesday, November 23, 2011, USCIS Headquarters announced that it had received enough H-1B petitions to fulfill the H-1B quota for the fiscal year ending September 30, 2012.  As of November 22, 2011, petitions for “new employment” of H-1Bs, that is, for employment of a person who is not yet in H-1B status for another cap-subject employer, will not be accepted again until April 1, 2012.  Those petitions received after April 1, 2012 must request employment starting October 1, 2012, so that they will be subject to next year’s cap (FY 2013).

Please note that H-1B1 petitions for nationals of Chile and Singapore can still be approved due to free trade agreements with those countries, and that “cap exempt” employers (such as universities and nonprofit research organizations) can continue to seek H-1B status on behalf of their employees. In addition, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B cap.

The “final receipt date” for H-1B purposes is November 22, 2011.  Regulations now provide that all H-1B petitions received by USCIS on or before November 22, 2011 have been submitted “under the cap,” but all H-1B petitions received by USCIS on or after November 23, 2011 will be rejected, as the cap was reached on November 22, 2011.

Klasko Law is contacting employers about options for those beneficiaries of H-1B petitions that did not make the cut-off for the cap.

Additionally, as we reported in March 2011, USCIS previously sought public comment on the proposed “H-1B Pre-Registration Rule,” which would allow an employer to register online and wait for an H-1B number before filing the full H-1B petition with supporting documentation with USCIS.  USCIS has stated that this electronic registration system will not go into effect until a final rule is published and becomes effective. If a final version of the rule is published by January 2012, USCIS could implement the proposed registration system for the fiscal year 2013 H-1B season, which opens in April 2012.  As of now, however, USCIS has not given any indication of when the “Pre-Registration Rule” will become final and effective.  Klasko Law will notify employers if and when a final rule is published that mandates electronic pre-registration with USCIS for cap-subject H-1B petitions.