As of November 13, 2009, USCIS has received approximately 55,600 H-1B petitions subject to the FY 2010 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS states that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap.
Employers can continue to file H-1B petitions for a start date before October 1, 2010, so long as H-1B numbers are available. However, the start cannot be more than six months in advance of the date of preparation on the Form ETA 9035 Labor Condition Application (LCA), which is filed with the Department of Labor. The employer may now file an uncertified LCA with USCIS in support of the H-1B petition and USCIS will send out a request for additional evidence for the certified LCA. The H-1B petition can be filed no earlier than seven days after the LCA was submitted. This policy will last until March 4, 2010. Currently, the DOL is taking seven days to certify an LCA, unless it requests evidence verifying the employer’s information. DOL has been denying many LCAs based on its inability to verify the employer’s FEIN. This can delay the certification another two weeks. USCIS has acted reasonably in waiving the LCA certification as one of the requirements in light of DOL’s unreasonable delays (it has admitted bugs in its system). However, USCIS should allow the employer to file the H-1B petition as soon as the LCA is filed in light of the looming H-1B cap.