HOME H-1B Filing Season to Open April 1, 2010 The filing season for the Fiscal Year 2011 H-1B quota is at hand. Despite the sluggish economy, analysts are predicting positive growth in employment during the course of the year. Thousands of new H-1B cases will be filed on April 1, 2010. Employers need to project their labor needs for the coming year and position themselves to take advantage of the new H-1B quota. Each quota season brings new changes to the process and employers should make an effort to project their H-1B needs for the coming year as soon as they are able. There are two major differences to the H-1B process for this year that should be noted. The first change is the processing time for the Labor Condition Application (LCA). The second change is in the form of a USCIS guidance memorandum on “Establishing the ‘Employer-Employee Relationship’ in H-1B Petitions.” The LCA’s are no longer instantaneously approved. The LCA process now takes about seven workdays. However, the process can be three or more weeks if an employer has never filed an LCA or if it has never filed a PERM application. The Immigration Service expects the approved LCA to be filed with the H-1B petition. If the approved LCA is not included with the H-1B petition, then the Immigration Service might reject the application or delay its processing. Both outcomes will be detrimental to employers. Employers should add in the additional LCA processing time when they create their H-1B timelines. The guidance memorandum released by USCIS in January will have a significant impact on PEO's and Staffing Company employers who place professionals at third party job sites. The memorandum focused on the additional evidence that an employer should include with the H-1B petition aside from the basic evidence of support. The Immigration Service will now expect to see evidence that the petitioner exercises control over the employee at the job site. Mere proof that the petitioner is the paymaster will no longer be enough. Instead employers must demonstrate that they assign projects to their employees, that their employees report directly to them, that they directly supervise and manage their employees, and that there is an itinerary of projects that spans the length of the requested H-1B term. Employers will be expected to submit contracts and work orders to demonstrate on-going business. To avoid delays and possible denials, employers are encouraged to assemble the requisite documents, so that they can be filed with the initial petition. These new evidentiary requirements will have the greatest impact upon IT consulting and staffing companies, but other staffing arrangements may be affected too. For additional information regarding H-1B eligibility and/or procedure, and for guidance pertaining to your unique circumstances, please contact Sanford Posner or David Whitlock . [PRINTER FRIENDLY VERSION]