United States Citizenship and Immigration Services (“USCIS”) announced yesterday that it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (“FY”) 2011, which commenced on October 1, 2010 and ends on September 30, 2011. January 26, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after January 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

On December 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the U.S.;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

Earlier this month, the QMI Agency (“QMI”) reported that senior Citizenship and Immigration Canada (“CIC”) officials had said illegal work experience could count towards a permanent residence application filed under a Provincial Nominee Program (“PNP”). According to QMI, Jacqueline Desjardins, senior analyst at CIC’s national headquarters wrote the following in an e-mail, “We can count illegal work [in Canada] for PNP, but at the same time we need to have a confirmation of the illegal work.” Desjardins’ statement that illegal work could count towards a full immigration application apparently came in response to an e-mail query circulated around the immigration department.

Could this really be true? Soon after the QMI story was released, the Toronto Sun reported that Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, had “overruled” Ms. Dejardins. Kenny’s spokesperson said, “We were outraged to hear that illegal work experience could count in favour of an applicant for permanent residency.” Even NDP immigration critic Olivia Chow chimed in and said that she didn’t know what officials were thinking in approving illegal work experience.

But what really was CIC’s policy? Did the Federal Government previously allow the use of illegal employment in Canada to support permanent residence applications filed under the PNP program and did it later pull back from this position due to negative public opinion? It is more likely that Ms. Desjardin’s initial statement was just incorrect. So Minister Kenny did not actually “overrule” her; it is probably more accurate to say that he simply corrected an erroneous statement.

According Subsection 41(a) of the Immigration and Refugee Protection Act (“IRPA”), a foreign national, who through an act or omission which contravenes, directly or indirectly, any provision of IRPA is inadmissible to Canada. Illegal employment in Canada by a foreign national contravenes IRPA and therefore results in inadmissibility. In many cases, foreign nationals who work illegally in Canada will also violate other laws, such as income tax laws, which may result in additional inadmissibility.

Of course, this does not mean that illegal employment that took place outside of Canada cannot be counted in a PNP application. Each province sets its own criteria for eligibility and, while these criteria cannot contradict IRPA, PNPs have the discretion to recognize work experience gained illegally outside Canada.

For example, the website of Opportunities Ontario (Ontario’s PNP program), states only that for work experience obtained in Canada, it will accept full-time work experience that is verifiable, relevant, paid and obtained with proper work authorization from Citizenship and Immigration Canada. It does not require employment experience obtained in a different country to have been acquired in accordance with a work authorization from that country’s immigration authorities.

As of January 14, 2011, approximately 60,700 H-1B cap-subject petitions were receipted. Additionally, United States Citizenship and Immigration Services (“USCIS”) has receipted 20,000 H-1B petitions for aliens with advanced (master’s or higher) degrees from the United States.

In other words, there are only 4,300 H-1B numbers available under the general cap (assuming of course that no H-1B numbers have been set aside for the H-1B1 program). The U.S. master’s cap has already been reached.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The current annual cap on the H-1B category is 65,000. However, some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Others are completely exempt from the numerical limits.

Please note that up to 6,800 H-1B numbers may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

For further information regarding the H-1B category, please review our H-1B article, which is available here.