According to the USCIS, as of January 21, 2011, approximately 62,800 H-1B cap subject petitions have been received by USCIS towards the annual cap of 65,000 H-1B visas. USCIS has already approved another 20,000 H-1B visa petitions under the “advanced degree” exception, also known as the Master’s cap.  Given that fewer than 3,000 visas remain under the regular H-1B cap, the cap for the current fiscal year will be reached imminently given the current “burn” rate.

What is the impact for employers?

What this means is that the H-1B visa petition cap is likely to be reached in the next few days to weeks, but most certainly by early February and possibly sooner if the current demand keeps up. While any improvement in the economy is welcomed, the impact on employers and many potential employees who require new H-1B sponsorship to take employment in the U.S. is that the visa category will not be available until the next fiscal year commences on October 1, 2011.

When the H-1B cap is reached, employers will once again have to queue up to file H-1B visa petitions for cap subject individuals on April 1, 2011 for a start date of October 1, 2011.  This also means that employers should be reviewing their employment roles now to determine if any individuals have been hired as F-1s, J-1s or other nonimmigrant classifications who may require H-1B sponsorship or if candidates from abroad are being considered for opportunities that require H-1B sponsorship.  If there are any such identified individuals, now is the time to file an H-1B cap petition. Once the cap is reached, cap subject petitions will not be accepted until April 1 with an October 1 validity start date.

USCIS has advised that it will be publishing a regulation change that will require employers to register to secure an H-1B cap number, prior to filing H-1B petitions.  However, this regulation has not yet been published, and it is unknown exactly how this will impact the cap filings for FY2012. 

Looking forward to FY 2012 and beyond

Assuming that the economy improves and U.S. hiring increases, there will likely be a return to the “run on numbers” that we have experienced in prior years. Employers and foreign nationals should be braced for a return to the lottery system for H-1B visa numbers and, while this may not happen in April 2011, it will likely happen in subsequent fiscal years.

J&H continues to monitor the FY2011 H-1B cap count, and is notifying clients as information becomes available.  It is impossible to predict when the H-1B cap will be reached.  In prior years, USCIS has given little or no notice before the cap was reached, leaving some clients who wanted H-1B visas out of luck.
If you wish to start an H-1B cap case, or have questions about the H-1B visa cap, please contact your J&H attorney immediately.

Background

There is an annual limit of 65,000 visas that can be given out to new H-1B nonimmigrants.  The 65,000 visas also include visas that are typically held in reserve for citizens of Singapore and Chile due to free trade agreements with these countries.  The unused portion of the 5,800 visas reserved for citizens of Singapore and Chile each year may be added back towards the 65,000 based on usage each year. In addition to this base 65,000, 20,000 visas are considered “exempt” from the cap each year to be awarded to individuals who have graduated from Master’s (or higher) degree programs from accredited US universities.  Therefore, there are roughly 85,000 new H-1B visas available each year.

The H-1B cap typically impacts employers desiring to employ individuals who are in the U.S. in other nonimmigrant categories (F-1, J-1, L-1, etc.) or who are H-1B nonimmigrants with universities or related not for profit research institutes (Stanford, Harvard, etc.) or who are outside the United States. Individuals who were already counted against the cap in a prior fiscal year and who have not “reset” their six year limitation of stay clock, are exempt from the cap. Therefore, any current employees that a company has who are already in H-1B status and for whom an extension is required do not have cap issues.

Given that the U.S. government’s fiscal year runs from October 1 through September 30 each year, and H-1B visa petitions cannot be filed more than six months prior to the requested start date, what has typically happened each year is that employers submit the bulk of the H-1B cap petitions to arrive at the USCIS service centers by April 1 of each filing year. Prior to 2009, more than sufficient numbers of petitions have been received during the first week of April to exhaust number of available H-1B cap visas.  In fact, typically the filed petitions are subjected to a lottery system for adjudication and a large number of filed petitions are rejected based on the cap having been reached.

This did not happen in April 2009 and 2010, due to various factors, including the U.S. economic recession.  To give an idea of the accelerating rate of cap filings, as of June 11, 2010, approximately 22,200 H-1B cap-subject petitions and approximately 9,400 petitions qualifying for the advanced degree cap exemption had been filed.  As of October 8, 2010, the number of regular cap cases had increased to 41,900 and approximately 15,400 petitions towards the advanced degree cap.  Filing continued to increase throughout November and December, and by January 7, 2011, more than 58,700 petitions had been received at USCIS towards the 65,000 cap and all 20,000 advanced degree H-1Bs had been taken.  Only two weeks later, the current count is 62,800, reflecting receipt of more than 4,100 cap H-1Bs since January 7.  If that pace of filing continues, the remaining cap H-1Bs will be exhausted within the next two weeks.

In terms of how the H-1B cap is reached, if a petition is received at USCIS before the cap is reached, the petition is assigned one of the available numbers.  When USCIS announces that the cap has been reached, the Service will usually state that all petitions received on or by a certain date have been accepted under the cap, or all petitions received on that date will be run through a lottery, to determine which petitions get one of the remaining H-1B visa numbers.  Generally, petitions that are in the mail to USCIS on the day the cap is reached are not accepted, and will be returned unprocessed.  For this reason, it is imperative to file H-1B cap petitions as soon as possible.

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