As of December 15, 64,200 H-1B cap cases have been received by United States Citizenship and Immigration Services (USCIS) toward the 2010 Fiscal Year (FY 2010) cap of 65,000. With only 800 H-1Bs remaining, it appears likely that the FY 2010 cap will be reached within days. H-1B petitions for any individuals subject to the H-1B cap must be filed immediately to have a chance to be processed.

As a reminder, not all petitions are subject to 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. 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 FY 2009) with an additional 20,000 available to H-1B applicants who possess a Master’s or higher degree from a U.S. academic institution. For FY 2010, the 20,000 Master’s cap was reached as of September 25, 2009.

As reported in our December 1, 2009 E-Alert, the number of H-1B cap petitions received at USCIS toward the FY 2010 cap has increased markedly over the past few weeks – perhaps because the economy has stabilized or perhaps because many F-1 students’ employment authorizations will expire next summer. While USCIS has also issued an update indicating it will accept H-1B cases without a certified Labor Condition Application (LCA), an employer must still provide proof that it has filed an LCA and that it has been pending for seven days. Thus, an employer that decides today that it wants to hire an H-1B worker is still typically one week or more from filing.

Note: This article was published in the December 2009 issue of the Immigration eAuthority.

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