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H-1B Filing Season to Begin April 2, 2012

By Michael P. Nowlan / Mar 30, 2012

Employers are reminded to identify new candidates who will require H-1B sponsorship as soon as possible to ensure that these applications are accepted for processing. April 2, 2012 is the first date that an employer is able to file an H-1B petition on behalf of a foreign national who has not possessed H-1B status before. Employees with approved H-1B petitions will be able to begin work in that status on Oct. 1, 2012.

The H-1B is a frequently used temporary work visa for professional positions. Generally, there are only 65,000 H-1Bs available per year. Although the annual limit in 2011 was not reached until November 2011, the annual limit has been reached in prior years on April 1 st . Under the current rules, if USCIS receives more than enough petitions in the first five days of processing, there will be computer generated random selection process to choose which H-1B petitions will be accepted for processing. All applications received during the first five business days of April will be treated as though they were received on the first business day of April.

There are an additional 20,000 H-1Bs available for candidates with a master's degree or higher from a U.S. university. Foreign nationals who work for a non-profit research organization, an institution of higher education, or work furthering the purposes of either of these, or have used a cap subject H-1B, are exempt from the H-1B quota. For more information on H-1Bs, see the Clark Hill website .

Visa Priority Dates - April Visa Bulletin and Retrogression Anticipated for May

The April Visa Bulletin has been posted . Visas for employment based second and third preference cases have moved forward, including those born in India and China. Note that at the Chicago Chapter Regional Conference of the American Immigration Lawyers Association, Charles Oppenheim, chief of the Visa Control and Reporting Division at the U.S. Department of State, announced that the visa numbers for May 2012 will likely revert to August 2007 or earlier for the EB2 category for nationals of India and China . This retrogression of priority dates moves the visa numbers available back from the current date of May 1, 2010. This retrogression of priority dates is due to increased demand in the previous months and a higher than anticipated demand in the EB1 category, leaving fewer visas to "roll down" to the EB2 category. Persons who have an I-485 Adjustment of Status pending at the time the priority dates retrogress will continue to have their Adjustment of Status applications pending and will continue to be eligible for Employment Authorization Documents (EADs) and Advance Parole extensions. For a summary of priority dates, retrogression and how these dates impact U.S. green card processing, please visit the Clark Hill website .

Clark Hill to Host Employment Seminar

On Wednesday, May 2, 2012, Clark Hill will be hosting the 28th Annual Employment Law Conference in Livonia, Mich. This is a day filled with current and relevant seminar topics, including an I-9 Employment Verification update for human resources professionals, in-house counsel and business owners. For more information and registration details, see the Clark Hill website .

H-1B Reminder on Work Locations

U.S. Citizenship and Immigration Service (USCIS) continues to visit the worksites of individuals who hold H-1B status to confirm that the individual is performing the job described at the location listed on the H-1B petition. Sponsoring employers and H-1B employees are reminded to discuss any changes in work location with their counsel prior to changing the work location. For more information regarding the H-1B status, see the Clark Hill website .

ICE Publishes Guide to SSN and Driver's License Application Timing for SEVIS Users

Immigration and Customs Enforcement (ICE) recently published a guide for persons in F, J and M nonimmigrant status who are entered into the Student and Exchange Visitor Information System (SEVIS). Information on the timing for those nonimmigrants to apply for a Social Security number and driver's license applications can be found on ICE's website:

http://www.ice.gov/doclib/sevis/pdf/bm1112-05-dmv-timing.pdf .  More information on F and J status can be found on the Clark Hill website .

US Immigration and Customs Enforcement (ICE) Updates

Below are summaries of recent efforts by the U.S. ICE as they enforce laws related to employment of persons not authorized to work in the US. While there were many actions that took place recently, below are a few of the highlights.

Two Texas Men Indicted for Hiring Unauthorized Workers

On March 2, 2012, ICE announced that two men were indicted for allegedly hiring unauthorized workers in Winnie, Texas, to cleanup an oil spill near Marshall, Mich. If convicted, the men face a maximum sentence of 10 years in federal prison without parole, and a $250,000 fine for a conspiracy charge and each of the transporting alien counts. The individuals face an additional six months imprisonment and up to a $3,000 fine on the charge of hiring unauthorized workers.

Restaurant Owner and Managers Arrested for Hiring Unauthorized Workers

On Feb. 24, 2012, ICE announced that the owner and three managers of three restaurants in Mississppi were arrested on federal charges related to the conspiracy to knowingly employ unauthorized workers and harboring them from authorities following an ICE investigation.