H-1B Cap Not Reached During Initial Filing Period

Still Availability Under the Fiscal Year 2010 Cap

U.S. Citizenship and Immigration Services (USCIS) has announced that it will continue accepting H-1B visa petitions subject to the fiscal year 2010 (FY 2010) cap. Unlike last year, the cap was not reached during the initial filing period from April 1 to April 7. Last year, approximately 163,000 petitions were received during the initial filing period, including more than 31,000 filed under the advanced degree (“Master’s cap”) category. As of April 9, USCIS has received approximately 42,000 H-1B petitions counting toward the 65,000 FY 2010 cap and has announced that it has received nearly all cases it will accept under the 20,000 FY 2010 Master’s cap.

Thus, employers still have the opportunity to file cap-subject H-1Bs until USCIS announces it has received the necessary number of petitions to meet the respective caps. Once USCIS determines that sufficient petitions have been received, the federal agency will conduct a random selection lottery to determine which petitions received as of that date (“the final receipt date”) will be processed under the respective caps. As USCIS has indicated that approximately 20,000 slots remain available under the 65,000 FY 2010 cap, it may be some time before that cap is reached. However, employers must proceed rapidly to file H-1B petitions once a candidate for sponsorship has been identified as everyone is competing to meet a random, unidentified deadline.

Employers are reminded that persons currently employed as F-1 students or J-1 trainees and persons outside of the United States commonly require new, cap-subject H-1Bs. Certain petitions are exempt from the H-1B cap, including:

• 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.  

Congress has mandated an annual limit on the number of new H-1Bs.  The annual cap for new H-1Bs is 65,000 (less 6,800 set aside for citizens/nationals of Chile or Singapore) with an additional 20,000 available to H-1B applicants who possess a Master’s or higher degree from a U.S. academic institution. An applicant qualifies for an H-1B under the additional 20,000 allotment if they have completed all requirements for the advanced degree at the time the petition is filed.  

Additional Information

Should you have any questions or to initiate any new H-1B petitions as quickly as possible, contact the Ogletree Deakins attorney with whom you normally work, a member of the firm’s Immigration Practice Group, or the Client Services Department at 866-287-2576 or via e-mail at clientservices@ogletreedeakins.com.

Note: This article was published in the April 9, 2009 issue of the Immigration eAuthority.