H-1B and H-2B Cap Updates: Still Availability

After a one week “jump” in mid-August when some 4,200 cases were filed, demand for H-1B visa petitions has returned to a steadier pace. As of September 17, U.S. Citizenship and Immigration Services (USCIS) reported that it has received approximately 38,300 H-1B petitions counting toward the annual 65,000 “cap” (see www.uscis.gov/h-1b_count ). This means approximately 4,400 petitions have been filed over the past four weeks, a pace consistent with the mid-June to mid-August period. USCIS also has received 14,000 petitions (1,400 over the past four weeks) for individuals with advanced degrees counting toward the 20,000 advanced U.S. degree or “Master’s Cap.” Thus, assuming a more consistent pace of H-1B filings, we are likely several months away from exhausting H-1B visas available under the Fiscal Year 2011 (FY 2011) quota. 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. Last year’s cap (FY 2010) was reached just before Christmas in 2009.

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 which 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 H-2B cap count for FY 2010 reached 30,077 as of September 17, meaning the FY 2010 cap will likely not be reached. For employment beginning on or after October 1, 2010, counting toward FY 2011’s allocation, only 7,727 slots have been filled. Note that USCIS will approve cases for 47,000 H-2B beneficiaries for each half of the Fiscal Year, the difference (47,000 versus 33,000) being used as a cushion for petition withdrawals, denials and revocations. 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.