On April 1st, employers began filing H-1B petitions for potential employees who require initial H-1B status for work that will commence on October 1, 2011. As of April 22nd, approximately 8,000 H-1B cap-subject petitions were receipted by USCIS. An additional 5,900 were receipted for foreign nationals with masters or higher degrees from a US institution of higher education. These numbers are significantly down from past years, including 2010, when 19,100 petitions were filed for the coveted work visa during just the first week of April.
This slow start to the H-1B filing season is not just due to the sagging economy; employers increasingly have been deterred from petitioning for their employees as more and more hurdles are thrown in their path. Last year, USCIS altered its definition of what constitutes a valid H-1B employer-employee relationship, imposing new rules on the types of activities in which H-1B workers can engage. It also began to closely scrutinize the authorship of credentials evaluations where education and work experience are combined, and increased field audits of H-1B employers. More recently, USCIS has imposed a requirement that H-1B employers attest that they are in compliance with Export Administration and International Traffic in Arms regulations regarding the release of controlled technology or data. Few employers are affected, but all must make a legally binding attestation, which in turn often requires input from counsel.