As of April 8, 2009, the USCIS has reported that FY2010 H-1B visa numbers remain available. Until further notice, USCIS will continue to accept new H-1B visa petitions applied toward either the "regular" allotment for degreed professionals, or for the smaller allotment reserved for U.S. advanced degree holders. While no specific numbers have been released, USCIS has advised that less than half of the available "regular" allotment H-1B visa petitions have been received. However, the "U.S. advanced degree" cap has almost been reached. Once the U.S. advanced degree cap has been exhausted, persons with qualifying education may be eligible for a regular H-1B, provided numbers are still available.

For foreign nationals whose cap-subject H-1B petitions were received on or before April 8, 2009, this is excellent news; these petitions will be adjudicated and no lottery will be necessary. This means that if your H-1B visa petition was received by April 8, 2009, your petition will be accepted and adjudicated on its merits. We have directly notified individuals with pending H-1B cap petitions filed by our office of this development.

This is also good news for companies who have already filed cap-subject H-1B petitions, not only because the currently-filed cap-subject H-1B petitions will be accepted without the need for lottery, but also because any foreign national candidates who have been identified at the "last second" remain eligible for the coming fiscal year's H-1B visa allotment.

If you have identified such a candidate, you will want to act quickly to file a new H-1B visa petition for them, as there is no way to know when the H-1B visa cap will be reached for either the "regular" or "U.S. advanced degree" allotments. The cap could be reached within a matter of days or weeks so the sooner you file for a cap-subject H-1B, the better your chances are of obtaining one.

USCIS has announced that on the date that a H-1B visa cap (regular or U.S. advanced degree) is reached, all H-1B visa petitions received for that cap on that final date will go to lottery. After the lottery is concluded, no further H-1B visa petitions will be accepted against that cap until the first filing date for the next fiscal year (April 1, 2010). If the Master's cap is reached before the regular cap, left over Master's cap cases received on the "lottery day" will be automatically shifted to the regular cap.

Please note that we do not yet have specific information about any of the pending H-1B petitions that were filed by Jackson & Hertogs. The fact that an H-1B petition has been accepted by USCIS for processing is not a guarantee of approval. All H-1B petitions must still be adjudicated on the merits. Jackson & Hertogs will continue to post updates as news develops.

You can read the USCIS press release here (pdf).

© 1999-2012, Jackson & Hertogs - All rights reserved