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Click here to view the USCIS press release (pdf)
Now that the H-1B cap has been 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.
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.
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.
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 U.S. 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. The USCIS announced that as of this past Monday, there were 3000 visa numbers left and during a CSC Liaison meeting it was stated that USCIS expected the cap to be reached before the end of the week. They then announced today, that a sufficient number of petitions was received as of yesterday.
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.
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