Cap Updates: H-1B Cap Cases Trickle In; Still Availability under the 2010 H-2B Cap

Demand for H-1B visa petitions increased slightly, but continued to be relatively light as compared to recent years. As of May 14, U.S. Citizenship and Immigration Services (USCIS) reported that it has received approximately 19,000 H-1B petitions counting toward the annual 65,000 “cap” (see www.uscis.gov/h-1b_count). USCIS has also received 8,100 petitions for individuals with advanced degrees counting toward the 20,000 advanced U.S. degree or “Master’s Cap.” Thousands of H-1B visas thus remain available under the Fiscal Year 2011 (FY 2011) quota, though the pace of filing during the late April to May time frame appears greater than last year. 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. Each year on April 1, USCIS begins accepting new H-1B petitions to be counted against the annual H-1B quota for the next government fiscal year which begins on October 1.

The H-2B visa classification, which allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs, has a cap of 66,000. The cap is split into two “seasons” with 33,000 allocated for employment beginning between October 1 and March 31 and 33,000 allocated for employment beginning between April 1 and September 30. The Fiscal Year 2010 (FY 2010) H-2B cap count was at 25,174 as of May 12. USCIS actually will approve cases for 47,000 H-2B beneficiaries, with the difference (47,000 versus 33,000) being used as a cushion for petition withdrawals, denials and revocations. Thus, there is still a fair amount of H-2B availability for the remainder of FY 2010. Note that petitions to extend the status of H-2B beneficiaries already in the United States generally do not count against the cap. For updates on the H-2B cap, visit the USCIS website.