2010 H-1Bs Gone: Time to Start Planning for 2011

United States Citizenship and Immigration Services (USCIS) announced that the 65,000 H-1B cap for the 2010 fiscal year (FY 2010) was reached on December 21 (click here for more information). The annual limit for new H-1Bs is 65,000 (less up to 6,800 set aside for citizens/nationals of Chile or Singapore, plus any of the unused 6,800 from the prior fiscal year). An additional 20,000 H-1Bs are available to individuals who possess a Master’s or higher degree from a U.S. academic institution (the “Master’s cap”). For FY 2010, the 20,000 Master’s cap was reached as of September 25, 2009. “New” H-1Bs are thus unavailable until the start of FY 2011 on October 1, 2010.

Employers can continue to file petitions for workers not subject to the H-1B cap, which includes petitions filed to extend or amend H-1B employment for foreign workers already in H-1B status and petitions filed on behalf of new workers to be employed by institutions of higher education or related nonprofit entities, nonprofit research organizations, or governmental research organizations.

Now that the FY 2010 cap has been reached, employers must immediately turn their attention to the FY 2011 cap. The filing period for “new” H-1B petitions to be counted against the annual H-1B cap begins on April 1, 2010. Employers are encouraged to begin identifying current and future employees who will need H-1B visa status to be legally employed. Individuals currently employed as F-1 students or J-1 trainees and individuals outside of the United States commonly require new, cap-subject H-1Bs. April 1 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2010. Although the hiring of H-1B workers has not recovered to the levels seen in 2007 and 2008 when the H-1B cap was reached within the first few days of filing, employers are encouraged to file at the first possible opportunity to maximize access to limited H-1Bs.