After months of virtually no movement in the number of H-1B cap cases received by United States Citizenship and Immigration Services (USCIS), the number of cases filed toward the 2010 Fiscal Year (FY 2010) cap of 65,000 surged to 55,600 as of November 13, 2009. Thus, there is a new urgency for employers to quickly file H-1B petitions for any individuals subject to the H-1B cap, including: F-1/J-1 employees (especially those whose employment authorization will expire before September 30, 2010); prospective employees currently outside of the Unites States; and employees currently working in another time-limited visa classification (such as L-1B or TN).

Just to recap the key facts about the H-1B cap:

  • 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.


  • 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.

  • For FY 2010, the 20,000 Master’s cap was reached as of September 25, 2009.
  • The filing of H-1B petitions toward the FY 2010 cap has increased markedly over the past few weeks – perhaps because the economy has stabilized or because many F-1 students’ employment authorization will expire next summer.  Below is a recap of the number of petitions filed toward the 65,000 cap:

November 13: 55,600

November 6: 54,700

October 25: 52,800

September 25: 46,700

August 28: 45,100

July 24: 44,900

June 5: 44,400

USCIS also issued an update on November 5 announcing a relaxation of the rules requiring a certified Labor Condition Application (LCA) to be filed with H-1B petitions. Until March 4, 2010, USCIS will accept H-1B filings where the LCA has been filed and pending for seven days. This helps alleviate lengthy LCA processing delays arising from the Department of Labor’s (DOL) recently implemented “iCERT” system. Still, employers must act quickly to access remaining FY 2010 H-1B cap slots. 

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

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