Employers are reminded that, beginning April 1, 2011, U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B temporary worker petitions for foreign nationals requesting an employment start date on or after October 1, 2011.

For fiscal year 2011 (FY11), the 65,000 H-1B cap was reached on January 26, 2011. The 20,000 H-1B numbers reserved for foreign nationals possessing an advanced degree from a U.S. college or university were exhausted as of December 22, 2010. Although it is not expected that the H-1B cap for fiscal year 2012 (FY12) will be met within the first several months of filing, we encourage employers to start carefully considering their hiring needs for the coming year. Once the H-1B cap is reached, employers will not be able to obtain new H-1Bs until October 1, 2012. In addition, if employers have foreign national students working under Optional Practical Training (OPT), which will expire before October 1, the filing of an H-1B petition may be critical to extending their ability to work.

If you are considering the hiring of a foreign worker who will need H-1B sponsorship, please contact any of our immigration attorneys immediately to review your hiring plans. It is important to remember that the cap applies only to new H-1B cases, and not to extensions of H-1B status or a transfer of an H-1B visa from one employer to another. The cap does, however, affect those foreign nationals who are in H-1B status seeking to work for new employers, but who are currently exempt from the cap based on employment with a university or not-for-profit or governmental research organization.

DHS Launches E-Verify Self Check

As of March 21, 2011, persons who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia, or the District of Columbia can check their employment eligibility status through the Department of Homeland Security's (DHS) new E-Verify Self Check service found on the USCIS website. E-Verify Self Check is the first online E-Verify program offered directly to workers and job seekers. The service is voluntary and free of charge, and will allow users to verify their employment eligibility status before formally seeking employment.

The E-Verify Self Check process allows users to enter their identifying information and work eligibility information online. E-Verify Self Check then checks users' information against relevant Social Security Administration (SSA) and DHS databases and returns information on users' employment eligibility status. If Self Check is unable to confirm employment authorization, individuals are provided with instructions on how to resolve a potential data mismatch in their SSA or DHS records. The information that users provide to E-Verify Self Check and the results of the Self Check are never shared with users' employers or prospective employers.

Employers should take particular note of the following:

  • The results of a Self Check do not replace the employer's obligation to conduct an E-Verify query if the employer is registered with the E-Verify program. Employers must continue to run an E-Verify query on each new hire (or existing employee, if applicable), even if the new hires have previously verified their employment status through Self Check.
  • Individuals cannot be required to use E-Verify Self Check to prove work authorization, as it is a voluntary program.
  • E-Verify Self Check is not for employer use.
  • Employers may not accept the results of a Self Check query as a document to fulfill the requirements of Form I-9.

USCIS partnered with SSA to identify one state in each of SSA's regions to participate in the first launch phase of the new service. USCIS has committed to working on expanding the Self Check's availability in other states, with the goal of expanding nationwide within 12 months.

We will continue to update you with any new developments regarding the E-Verify Self Check service. In the meantime, please do not hesitate to contact any of our immigration attorneys should you have questions regarding the service.