H-1B Cap Rapidly Approaching – File Immediately!

United States Citizenship and Immigration Services (USCIS) announced that 58,900 H-1B petitions have been filed toward the 2010 Fiscal Year (FY 2010) cap of 65,000 as of November 27, 2009. Employers are urged to act quickly to file H-1B petitions for any individuals subject to the H-1B cap, such as: 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).

Below is a summary of the H-1B numerical limitations:

• 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 degree or higher 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.
• Below is a recap of the number of petitions filed toward the 65,000 cap:

November 27: 58,900

November 13: 55,600

October 25: 52,800

September 25: 46,700

June 5: 44,400

Although we have been unable to confirm the exact number of cases to be accepted, we believe that USCIS is targeting 65,000 received cases and will then close the cap, meaning approximately 6,100 more H-1B cap cases will be accepted. The cap formula authorizes 58,200 H-1B approvals, plus unused cases from last year’s Chile-Singapore set aside of 6,800, plus an allowance for denied cases that technically do not count against the H-1B allocation. Although there has been no clear statement as to the numbers used in this calculation, it appears that USCIS is targeting 65,000 receipted cases. In light of the uncertainty and the rapid increase in H-1B filings, prudent employers will seek to file cases as quickly as possible.

Additional Information

For more information or to initiate any new H-1 petitions, contact the Ogletree Deakins immigration professional with whom you normally work or the Client Services Department at 866-287-2576 or via e-mail at clientservices@ogletreedeakins.com.

Note: This article was published in the December 1, 2009 issue of the Immigration eAuthority.