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At a December 1, 2009 seminar in New York, representatives of U.S. Citizenship and Immigration Services (USCIS) provided an update on the H-1B cap numbers for the October 2009 – September 2010 fiscal year (please see my earlier post for more on this topic -- The H-1B "Cap" - 2010 Fiscal Year Is The Canary In The Mine) .

While a recent report indicated that 58,900 petitions had been filed against the 65,000 cap, USCIS explained that the low number of filings for nationals of Chile and Singapore (who benefit from a set aside of 6,800 visas) means that there still are visas available. USCIS also confirmed that there were approximately 2,000 petitions filed in late November. This makes it difficult to predict how much longer visas will be able for the current fiscal year. Once the cap has been reached, employers will need to wait until April 1, 2010 to file a petitions requesting an October 1, 2010 effective date. Given this recent announcement, employers that still want to file H-1B petitions for the current fiscal year likely will need to do so soon. Experience has shown that there is a rush of petitions as the filings approach the 65,000 cap. The USCIS announcement concerning recent filings suggests that this rush already has begun.

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On Friday, January 30, 2009, USCIS announced that it was delaying the implementation of the new I-9 form and regulations published during the final days of the Bush Administration. On January 20, President Obama issued an executive order requiring review of all new regulations not yet effective.

Implementation of the new I-9 form, which for the first time requires new employees to distinguish between a representation of U.S. citizenship or non-citizen nationality and also reduces the number of acceptable documents, has been delayed for another 60 days. The new effective date for this form and the new requirements is April 3, 2009. The regulations also prohibited the use of some expired documents to demonstrate citizenship or identity. Existing regulations permit the presentation of expired driver’s licenses or passports. The now delayed regulation, however, requires all documents to be valid at the time they are submitted.

Unlike prior changes in the I-9 form, employers cannot use the new form until its effective date, and must use it after the effective date. Prior changes permitted the use of either form until the effective date of the new form, usually announced several months in advance. Thus, employers should continue to use the existing I-9 form until April 3, 2009. It is also possible that the new Administration may change the form or regulations before the new effective date.  Please continue to check our blog for future updates.

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On June 12, 2008, U.S. Citizenship and Immigration Services (USCIS) informed the American Immigration Lawyers Association that the H-1B random selection process has been completed. USCIS completed the intake and receipt processes for all filings as of May 24, 2008 and began mailing rejection notices the week of June 9. Therefore, if an employer has not yet received a filing confirmation (Form I-797C Notice of Action), it likely means that the petition was not selected in the random process and that the rejection notice will be forthcoming.

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