Each year on April 1, United States Citizenship and Immigration Services (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. As of April 15, USCIS reported that it has received approximately 13,500 H-1B petitions counting toward the annual 65,000 cap (click here for more information regarding the H-1B cap count). The agency also reported receiving only 5,600 petitions for individuals with advanced degrees counting toward the 20,000 advanced U.S. degree or “Master’s cap.” Thus, at this time, thousands of H-1B visas remain 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.

This year’s filing is the lightest volume of H-1B filings USCIS has experienced in years. After exhausting the entire cap allocation in 2007 and 2008 within the first few days of filing (for Fiscal Years 2008 and 2009 respectively), last year’s (FY 2010) H-1B initial filing period from April 1 to April 7 saw approximately 42,000 regular H-1B cases and nearly 20,000 Master’s cap cases filed. The FY 2010 cap was finally reached in December 2010.

With some anticipated pent-up H-1B demand, it is a bit surprising to some that so few H-1B cases have been filed thus far. Immigration commentators have cited several possible reasons for the weak H-1B demand: a still weak job market, the January policy memo from USCIS that arguably made placement of H-1B workers at third-party contracted worksites more problematic, and the overall increase in scrutiny of H-1B employers (see for example our previous article regarding H-1B sites visits). For many employers, the continued availability of H-1Bs is good news as it is often the only category available to hire professional-level foreign nationals.

Note that the current H-1B cap filings are for employment starting on or after October 1, 2010, the first day of the government’s FY 2011. Thus, employers cannot immediately hire H-1B workers unless the individual is not subject to the cap, for example if the individual already holds H-1B status, or the hiring entity is an exempt institute of higher learning or non-profit entity. As noted below, certain F-1 students whose current employment authorization expires before October 1 may be able to benefit from “cap-gap” or STEM relief to maintain continuous employment authorization while awaiting H-1B petition approval.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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