Global Immigration Counsel

A Stitch in Time Saves Sponsored Employees Being Refused Entry to the UK

Immigration/Global Migration Group — Wed, 18 Apr 2012 08:16:58 -0800

Employers who sponsor foreign national workers in the UK should be aware of two key changes to the Immigration Rules that will come into effect on 14 June 2012:

An increase in the funds needed to fulfil the maintenance requirement for applications to enter or remain in the UK.
An increase in the skill level required for a job to be eligible for sponsorship

Changes to the Maintenance Requirement.

Migrants should start saving now to meet new maintenance requirements coming into effect this summer. Most categories of migrants under the Points Based System are required to show that they hold a certain amount of money in their bank accounts as part of the application process. The requisite level of funds must be held in a migrant’s account for three months before the date of application.

Maintenance requirements are going up on 14 June 2012, so migrants who plan to submit applications after that date should ensure that they have the new, higher level of funds in their accounts from now. Maintenance requirements for Tier 2 applications will go up from £800 to £900 for the main applicant, and from £533 to £600 for each dependant.

A-rated sponsors can continue to undertake maintenance for sponsored employees and their dependants. Sponsors must now certify maintenance for dependants up until the end of the first month of the dependants’ leave, rather than of the main applicant’s employment in the UK.

Changes to the Required Skill Level

Several roles currently appropriate for sponsorship will no longer be of a sufficiently high skill level from summer 2012. The minimum skill level for Tier 2 migrants will be raised from National Qualifications Framework (NQF) level 4 to NQF level 6 on 14 June 2012. 27 occupations will no longer be eligible for sponsorship under Tier 2, including marketing associate professionals and dental technicians.

If a migrant is assigned a Certificate of Sponsorship before 14 June 2012 and his job then falls off the list, he will need to meet the higher NQF level 6 threshold when applying for entry clearance or leave to remain.

The new skill level will not apply to those with current leave under Tier 2 or as a work permit holder, granted before 14 June 2012, and who are extending their leave under Tier 2 or making a change of employer application.

For more information on this subject please contact Andrew Osborne.

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H-1B Cap Update for Fiscal Year 2013

Immigration/Global Migration Group — Fri, 13 Apr 2012 11:42:36 -0800

By Ian Macdonald

On April 9, 2012, U.S. Citizenship & Immigration Services (USCIS) announced the number of H-1B petitions received to date for the FY2013 cap: 17,400 petitions under the 65,000 regular H-1B cap, and 8,200 petitions under the 20,000 H-1B U.S. Master’s Degree Exemption. This means that approximately 74% of regular H-1B petitions and about 59% of U.S. Master’s Degree Exemption petitions remain available.

Employers would be wise to initiate H-1B cap cases as soon as possible, as these data suggest that the cap is very likely to be met earlier than it was in 2010 and 2011. While the chart below indicates that the demand for cap-subject H-1B petitions is not significantly higher than in recent years, the number of petitions being initiated by many employers has remained constant since the cap opened on April 2, 2012, whereas in 2010 and 2011 there was a drop-off in the number of petitions being initiated immediately after the cap opened. Furthermore, as the economy continues to show signs of improvement, the demand for H-1B petitions next year (FY 2014) could be competitive. Therefore, employers should consider filing petitions under the FY2013 cap to avoid potential challenges next year.

Using Historical Filing Data to Predict When the 2013 Cap Might Be Met

H-1B Fiscal Year	Number of Petitions Received	Date Cap Reached
FY 2013	As of April 9, 2012, USCIS had received approximately 17,400 H-1B petitions counting toward the 65,000 cap (about 26%), and approximately 8,200 towards the 20,000 cap exemption for individuals with advanced degrees (about 41%).	May 31, 2012 to June 30, 2012 (ESTIMATED – as in prior years the cap can close abruptly and earlier than expected, so employers should not rely on these estimated dates)
FY 2012	As of April 7, 2011, USCIS had received approximately 5,900 H-1B petitions counting toward the 65,000 cap (about 9%), and approximately 4,500 petitions toward the 20,000 cap exemption (about 22.5%) for individuals with advanced degrees.	Cap was reached November 23, 2011
FY 2011	As of April 8, 2010, USCIS had received approximately 13,500 H-1B petitions counting toward the 65,000 cap (about 21%) and approximately 5,600 petitions (about 28%) for individuals with advanced degrees.	Cap was reached January 26, 2011

Employers should be cognizant of the following when assessing an H-1B cap-subject filing:

F-1 OPT/H-1B Cap Gap Provision: F-1 students holding Optional Practical Training (OPT) with pending or approved H-1B change of status petitions (not consular notification) may continue to work in F-1 OPT status from the date when an F-1 student’s OPT work authorization would otherwise expire through October 1, 2012 (the date when his/her approved H-1B employment period starts).
F-1 OPT 17-Month STEM Extensions: F-1 students who (i) receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, (ii) are employed by employers enrolled in E Verify, and (iii) have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of this authorization.

USCIS Proposes a Provisional Unlawful Presence Waiver for Qualifying Immediate Relatives of U.S. Citizens

Immigration/Global Migration Group — Mon, 09 Apr 2012 08:32:32 -0800

By Michelle Valerio

U.S. Citizenship and Immigration Services (USCIS) has announced a proposed change that would shorten the time that U.S. citizens are separated from close family members who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. The proposed change to the regulations would allow certain immediate relatives of U.S. citizens to apply for a provisional hardship waiver prior to departing the United States for consular processing of their immigrant visa applications. This change would benefit foreign nationals who are subject to 3-year or 10-year bars to re-entering the United States after departure because of periods of unlawful presence in the United States. Currently, foreign nationals who face a bar to re-entry can apply for a hardship waiver based on their qualifying relationship to a U.S. citizen, but only after they have departed the United States. Since the processing times for these waivers is very lengthy, applicants are often separated from their U.S. citizen relative for long periods of time without knowing if they will be able to return to the United States.

The proposed change would minimize this separation time because the applicant would be able to submit the provisional waiver application while still in the United States and remain in the United States while awaiting a decision on the waiver. If the waiver application is approved, then the individual would depart the United States and attend an immigrant visa interview abroad. If there are no other bars to admission, the waiver would be finalized, and the individual would be granted an immigrant visa and admitted to the United States as a permanent resident.

The proposed procedural change will not take effect until USCIS publishes a final rule with an effective date in the Federal Register. The comment period for the proposed rule started April 2, 2012, and ends June 1, 2012. Comments may be submitted here.

Photo credit: Captura

Pilot Program in New Delhi Will Waive Interview for Some Visa Renewals

Immigration/Global Migration Group — Mon, 02 Apr 2012 11:17:19 -0800

By Michelle Valerio

The U.S. Embassy in New Delhi has announced that it is participating in a pilot program that will allow officers to waive an interview for a renewal visa in select circumstances. In order to qualify, individuals must have been interviewed and thoroughly screened during their initial application for a visa. The pilot program will not entitle any applicants to a waiver of an appearance and consulate officers have the authority to require individuals to appear for an interview if they deem it necessary.

The Embassy has not yet issued information on the process to apply for a renewal without an interview, but we expect guidance shortly.

USCIS Will Accept H-1B Petitions for Fiscal Year 2013 Beginning April 2, 2012

Immigration/Global Migration Group — Mon, 02 Apr 2012 08:10:44 -0800

By Michelle Valerio

Employers who wish to sponsor H-1B workers for Fiscal Year 2013 can begin filing petitions on April 2, 2012. The H-1B visa is used by businesses who wish to employ foreign nationals to work in a specialty occupation requiring theoretical or technical expertise. For FY 2013, cases will be considered accepted on the date that U.S. Citizenship and Immigration Services (USCIS) takes possession of the petition, not on the date it was postmarked.

There is an annual limit of 65,000 visas available for H-1B petitions, with 20,000 reserved for individuals who have earned a U.S. master’s degree or higher. USCIS will continuously update the public on the number of petitions it has received. If USCIS receives more than 65,000 petitions, it will conduct a lottery and randomly select petitions to be adjudicated. Petitions that are not selected in the lottery will be rejected and returned to the petitioner.

In recent years, the cap has not been reached for several months after opening on April 1; however, it is impossible to predict when the cap will be reached and petitioners should file their H-1B petitions as soon as possible.

USCIS Returns to Original Process for Mailing Approval Notices

Immigration/Global Migration Group — Fri, 16 Mar 2012 14:13:26 -0800

By Michelle Valerio

As of March 5, 2012, U.S. Citizenship and Immigration Services (USCIS) has returned to its original process for mailing approval notices, meaning that the attorney or representative of record no longer needs to enter their address as the mailing address to receive the original I-797A Approval Notice. On September 12, 2011, without notice, USCIS began sending receipt notices and approval notices directly to the petitioners and beneficiaries listed in the petitions. A courtesy copy of the notice was sent to the attorney or representative of record.

USCIS rapidly reversed this change after several stakeholders informed USCIS of the negative consequences of this practice. Beginning on September 30, 2011, USCIS established an interim process, while its computer system was being reprogrammed, under which attorneys and representatives of record were prompted to enter their address as the mailing address on the Form G-28, Notice of Representation, to ensure receipt of original notices from USCIS. The computer system has been reprogrammed, with the result that attorneys and representatives listed on Form G-28 will now receive the original receipt and approval notices automatically.

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State Department Releases April 2012 Visa Bulletin

Immigration/Global Migration Group — Fri, 16 Mar 2012 13:07:42 -0800

By Michelle Valerio

The U.S. Department of State has released the April 2012 Visa Bulletin, which summarizes visa availability for individuals seeking U.S. Permanent Residence. As compared to the March 2012 Visa Bulletin, little movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories:

EB-2 (professionals with advanced degrees or persons of exceptional ability): There was no progress in the oversubscription date for Indian and Chinese nationals; the priority date remains retrogressed at May 1, 2010. This category is current for nationals of all other countries.
EB-3 (skilled workers and professionals): The oversubscription date for nationals of India advanced ten days, from August 22, 2002 to September 1, 2002. A two-month advance occurred for nationals of China, from January 1, 2005 to March 1, 2005. There was an advance of 24 days for nationals of all other countries, to April 8, 2006.
EB-3 (other workers): There were no changes concerning Chinese nationals (April 22, 2003); Indian nationals’ oversubscription date advanced 10 days, to September 1, 2002; and the oversubscription date for all other countries advanced 24 days, to April 8, 2006.

Photo credit: David Franklin

House Committee Approves E-2 Visa Legislation for Israeli Investors

Immigration/Global Migration Group — Mon, 12 Mar 2012 06:56:01 -0800

By Michelle Valerio

The House Judiciary Committee has approved legislation that would add Israel to the list of countries whose citizens are eligible for an E-2 nonimmigrant treaty investor visa. Senators Charles Schumer (D-NY), Mark Kirk (R-IL) and Jon Kyl (R-AZ) proposed a companion bill in May 2011, but that bill has not yet moved through the Senate Judiciary Committee.

The E-2 visa allows individuals who make a substantial investment in the United States to live in the United States on a temporary basis while they direct the operations of their investment enterprise. Currently, 79 countries have treaties with the United States that allow their citizens to apply for E-2 status.

Israeli nationals are currently eligible for E-1 treaty trader visas based on a separate reciprocal treaty between the United States and Israel. The E-1 visa is a nonimmigrant visa for a foreign national who is coming to the United States to conduct substantial trade between the United States and Israel.

Office of Foreign Labor Certification Releases Statistics on the Permanent Labor Certification Program for FY2012

Immigration/Global Migration Group — Thu, 08 Mar 2012 15:16:08 -0800

By Michelle Valerio

The Office of Foreign Labor Certification (OFLC) has released select statistics on the Permanent Labor Certification Program (PERM) for FY 2012. Notable statistics for FY2012 PERM applications include the following:

Received: 17,700
Processed: 16,555
Certified: 12,350
Denied: 3,312
Withdrawn: 893
Audit Review: 26%
Appeal: 8%

According to the statistics above, approximately 20% of the PERM applications filed in FY2012 were denied.

The current PERM application processing priority dates, as of February 15, 2012, are as follows:

Normal Review: October 2011
Audit: June 2011
Appeal: August 2011
Government Error Appeals: Current

According to these priority dates, a PERM application under normal review will take, on average, four months to be certified. If the PERM application is selected for an audit, the processing time will increase by about four months, for a total processing time of eight months. Applications on appeal have a processing time of six months. If, however, the denial is a result of a government error, the application will be reviewed when it is received.

DHS Publishes Final Rule to Establish Global Entry Program

Immigration/Global Migration Group — Wed, 29 Feb 2012 07:48:05 -0800

By Emily Liss

The Department of Homeland Security has announced the publication of a final rule that will permanently establish the Global Entry program, effective March 7, 2012. The Global Entry program, which began as a pilot program, was created by U.S. Customs and Border Protection (CBP) to allow expedited entry into the United States for pre-approved, low-risk travelers. At the Global Entry Kiosk (found in most major U.S. airports), participants scan their passport or U.S. permanent resident card, scan their fingerprints for verification, and make a customs declaration. Upon issuance of a transaction receipt, the participant moves to baggage claim and the exit. On average, participation in the Global Entry program reduces waiting time by seven minutes.

U.S. citizens, lawful permanent residents, Dutch citizens, and Mexican nationals are eligible to participate in the Global Entry program. In addition, participants in the NEXUS (expedited crossing of the U.S./Canada border) and SENTRI (expedited entry into the United States from Mexico) programs may use the Global Entry Kiosks. In the future, other nonimmigrant aliens may be eligible to participate. To apply, eligible individuals must submit an online application, pay a $100 application fee, and undergo an interview with a CBP officer. Applicants may be deemed ineligible for the program if they have violated immigration laws, have been convicted of a criminal offense, are the subject of an ongoing government investigation, or are considered "high risk."

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New USCIS VIBE iUpdate Tool

Immigration/Global Migration Group — Thu, 16 Feb 2012 09:43:58 -0800

By Emily Liss

Validation Instrument for Business Enterprises (VIBE) is a web-based adjudication tool used by U.S. Citizenship and Immigration Services (USCIS) to validate basic information about companies or organizations petitioning to employ certain alien workers. The information in VIBE is provided by Dun & Bradstreet (D&B). USCIS has announced a streamlined process, iUpdate, by which companies can register online with D&B. Registration allows companies to see how their business is represented in VIBE before they file with USCIS, which can decrease the number of unnecessary VIBE Requests for Evidence (RFEs) issued because of incorrect company information. USCIS may issue an RFE to obtain additional information after initial case submission. RFEs can delay processing of the case.

The iUpdate online service tool is free, password-protected and encrypted. Users are asked a series of short challenge questions, based on geographical and demographic data, for the purpose of authenticating and establishing an ID and password. iUpdate is available at: https://iupdate.dnb.com/iUpdate/mainlaunchpage.htm.

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E-Verify Self Check Now Available Nationwide

Immigration/Global Migration Group — Thu, 16 Feb 2012 07:35:47 -0800

By Michael J. Lehet

Launched in March 2011, and subsequently available in 21 states plus the District of Columbia, E-Verify Self Check is now accessible in all other states plus Guam, Puerto Rico, the U.S. Virgin Islands, and the Commonwealth of Northern Mariana Islands. Self Check is available in both English and Spanish.

A part of E-Verify, Self Check allows individuals to confirm their eligibility to work in the United States by entering the same information used by employers in performing E-Verify inquiries (i.e., name, address, date of birth, Social Security Number, citizenship, and identity and work authorization credentials). Self Check compares this information against the same databases utilized by E-Verify to confirm employment eligibility. According to U.S. Citizenship and Immigration Services, Self Check benefits both workers and businesses, taking the “mystery” out of the employment eligibility verification process and allowing workers to resolve records discrepancies before accepting a new job. Importantly, Self Check is voluntary. Therefore, employers are prohibited from requiring applicants or employees to use the system.

A recent survey found an increase in the percentage of employers using E-Verify to confirm the work authorization of employees. Of those surveyed in 2011, 51% indicated they use E-Verify, as opposed to 28% in 2010.

State Department Releases March 2012 Visa Bulletin

Immigration/Global Migration Group — Wed, 15 Feb 2012 10:30:41 -0800

By Michelle Valerio

The U.S. Department of State has released the March 2012 Visa Bulletin, which summarizes visa availability. As compared to the February 2012 Visa Bulletin, some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals progressed four months, from January 1, 2010 to May 1, 2010.
EB-3 (skilled workers and professionals): The oversubscription date for nationals of India advanced one week, from August 16 to August 22, 2002. A one-month advance occurred for nationals of China, from December 1, 2004 to January 1, 2005. There was a three-week advance for all other countries, to March 15, 2006.
EB-3 (other workers): There were no changes concerning Chinese nationals (April 22, 2003); Indian nationals’ oversubscription date advanced one week, to August 22, 2002; and the oversubscription date for all other countries will advance approximately three weeks, to March 15, 2006.

Pending Final Rule Will Allow Issuance of L Visas for the Same Time Period as the Visa Reciprocity Schedule

Immigration/Global Migration Group — Mon, 13 Feb 2012 11:00:26 -0800

By Michelle Valerio

The United States Department of State has posted information about a pending final rule which will allow L-1 visas (for intracompany transferees) to be issued for the length of time corresponding to the individual’s home country’s visa reciprocity schedule. Under the current regulations, L-1 visas are issued only for the duration of an L-1 visa petition’s validity period. The duration of an L-1 visa petition, which is the document authorizing the individual to work in the United States, cannot exceed three years.

Although the pending final rule will not affect all L-1 visa applicants, it will affect individuals from countries whose visa reciprocity schedules allow for the issuance of L-1 visas for periods of more than three years. For example, the visa reciprocity schedule for the United Kingdom permits L-1 visas to be issued for 60 months (five years); however, despite the reciprocity schedule, under the current Department of State regulations, L-1 visas can only be issued for a maximum of three years. Under this example, the pending final rule will allow individuals from the UK to be issued an L-1 visa valid for five years even if the duration of their underlying L-1 visa petition is three years or less. This means that if the foreign national holds an L-1A visa, and thus would be eligible to extend her stay in the United States for a period of up to seven years, she would only need to apply for two visas, instead of three, over the course of the seven years. The first visa would be issued upon initial entry into the United States, and the second visa issued upon re-entry after the five-year visa has expired.

Photo credit: David Franklin

DOJ Offers Guidance to Employers Facing I-9 Audits

Immigration/Global Migration Group — Thu, 09 Feb 2012 12:07:32 -0800

By Michael J. Lehet

The Civil Rights Division of the Department of Justice (DOJ) recently issued a series of “dos” and “don’ts” for employers audited by Immigration and Customs Enforcement (ICE). These self-described best practices focus on steps employers should take to avoid charges of discrimination when faced with I-9 audits.

The “dos” include developing a transparent process for interacting with employees during the audit, particularly those identified by ICE as having deficient I-9 forms or suspect identity and/or work authorization. The DOJ recommends that employers communicate in writing with these employees to notify them of the audit and to describe the specific basis for the deficiency or discrepancy and what information or documents are needed. The DOJ also recommends employers explain that the information or documents sought are in response to the audit and provide employees with a “reasonable” (but unspecified) amount of time to respond. If workers are represented by a union, the DOJ advises that employers inform the union about the audit and investigate whether a collective bargaining agreement triggers any obligations (e.g., to ensure that any adverse employment action taken as a result of the I-9 audit is in compliance with procedures and due process set forth in the agreement).

In addition, the DOJ offers several “don’ts” – each of which could lead to charges of employment discrimination. In particular, the DOJ advises that employers avoid singling out employees solely because they “look or sound foreign,” or based on assumptions about their work authorization (e.g., selectively scrutinizing the I-9 forms of employees of a particular race or national origin). Other “don’ts” include suspending or terminating employees without providing them a reasonable opportunity to comply, as well as either limiting the range of permissible I-9 documents or requiring more information or documents than required by ICE.

The DOJ’s guidance comes in the midst of an unprecedented uptick in I-9 audits by ICE.

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Single Work and Residence Permit for Non-EU Workers Required Under New Directive

Immigration/Global Migration Group — Tue, 17 Jan 2012 12:58:04 -0800

An important new European Directive designed to facilitate migration of non-EU citizens was approved in December and has been officially published.

The legislation imposes significant obligations on EU member states in two respects:

a single procedure for non-EU migrants to apply for a combined work and residence permit; and
equal rights for third-country nationals working legally within the EU.

The Directive applies to all member states apart from Denmark, the United Kingdom and Ireland (which are specifically excluded).

To learn more about the Directive and its potential implications for employers, please continue reading at our collaborative blog, Global Employment Law.

Biometric Registration for UK Visa Applicants Extended

Immigration/Global Migration Group — Tue, 27 Dec 2011 15:19:52 -0800

From the end of February 2012, the United Kingdom is extending the requirement to register biometric details to all non-EEA applicants within the country who are applying for visas of more than six months.

The UK government's move is in line with the European Union regulations specifying a uniform format for residence permits for third-country nationals. The UK was the first EU member state to implement the programme, introducing electronic residence permit cards for some immigration categories from November 2008. The new extension will complete the rollout to all in-country applicants with effect from 29 February 2012.

To learn about the requirement and its implications for employers, please continue reading at our collaborative blog, Global Employment Law.

House Clears Bill Eliminating Per-Country Employment Visa Caps

Immigration/Global Migration Group — Thu, 01 Dec 2011 17:56:48 -0800

On November 29 the House of Representatives voted overwhelmingly in favor of passing the Fairness for High-Skilled Immigrants Act (H.R. 3012), bipartisan legislation that would abolish the per-country numerical limits on employment-based immigrant visas. Introduced by Rep. Jason Chaffetz (R-UT) on September 22 and approved by a vote of 389-15, the measure would incrementally change the current system, whereby the annual number of employment-based immigrant visas allocated to natives of any single foreign country cannot exceed 7 percent of the total number of such visas issued that year. To learn more about the bill and its potential implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update.

New Littler Blog: Employee Benefits Counsel

Immigration/Global Migration Group — Wed, 30 Nov 2011 10:00:46 -0800

We are pleased to announce a new addition to Littler's blogroll:

Employee Benefits Counsel

Brought to you by Littler's Employee Benefits, ERISA and Benefit Plan Litigation, and Executive Compensation practice groups, this blog covers:

Legislative and regulatory developments in the employee benefits arena, including the topics of health care reform; plan design and administration; employee benefits litigation; and
Executive compensation, providing insight and analysis on legal developments that warrant discussion.

During this time of significant governmental change and shifts in the strategy and style of benefits litigation, Littler's depth of experience in employee benefits, litigation, and executive compensation matters gives our attorneys a distinctly broad perspective with which to provide insight and useful analysis of the latest developments. To subscribe to receive email alerts of new blog posts, please enter your email address in the Subscribe box on the right side of the Employee Benefits Counsel blog homepage.

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Fiscal Year 2012 Cap for H-1B Visa Petitions Reached on November 22, 2011

Immigration/Global Migration Group — Tue, 29 Nov 2011 09:21:18 -0800

By Ian Macdonald

U.S. Citizenship and Immigration Services ("USCIS") announced on November 23, 2011, that the statutory H-1B cap for FY 2012 was met. USCIS will reject any cap-subject petitions for new H-1B workers that are received by USCIS after November 22, 2011, regardless of when they were postmarked. As a result, employers will be unable to obtain new H-1B petitions with start dates between now and September 30, 2012. The filing period for FY 2013 will open on April 1, 2012, for H-1B petition start dates that will be effective on October 1, 2012, the beginning of FY 2013.

The H-1B "cap" limits new H-1B approvals to 65,000 each fiscal year. Of this amount, 6,800 are set aside for the H-1B1 visa program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Each year, any unused 6,800 Chile/Singapore H-1B1 visas are reserved for use during the next fiscal year. In addition to the standard 65,000 H-1B cap pool, there are 20,000 additional H-1B numbers made available for foreign workers with a master’s or higher degree from a U.S. academic institution. As of October 19, 2011, sufficient numbers of applications were received by USCIS to meet the 20,000 advanced degree exemption cap also.

It is important to note that only NEW H-1B petitions are subject to the cap. The following H-1B filings are NOT subject to the cap:

H-1B petitions for an extension of status;
H-1B change-of-employer petitions;
H-1B amendment petitions;
H-1B concurrent employment petitions;
H-1B petitions filed by cap-exempt organizations, including:
- institutions of higher education;
- nonprofit research organizations; and
- entities related or affiliated with an institution of higher education, a nonprofit research organization or a governmental research organization;
H-1B petitions for J-1 nonimmigrants who received a waiver of the two-year foreign residency requirement based on certain interested state or federal agency requests; and
H-1B petitions for beneficiaries who were counted against the cap within the preceding six years, unless the beneficiary is entitled to request a new six-year period.

Employers should discuss alternative visa options with experienced immigration counsel now that the H-1B cap for FY 2012 has been met.