On April 1, 2010, the United States Citizenship and Immigration Services ("USCIS") will begin accepting new H-1B petitions for employment beginning on October 1, 2010, which is the beginning of fiscal year 2011 ("FY2011"). In previous years the USCIS has reached the annual numerical limit on new H-1B's ("the H-1B Cap") on the very first day that new petitions could be filed. For instance, in 2008, the agency received more than 150,000 cap-subject H-1B petitions on the first day of filing, far exceeding the 58,200 available.
Although the H-1B cap for FY2010 was not reached until December 22, 2009, it is possible that the cap for FY2011 will be reached within the first few days that employers are eligible to file. Under USCIS regulations, if the number of H-1B petitions received between April 1, 2010 and April 7, 2010 exceed the number available, the USCIS will select petitions through a random, computerized "lottery" system for all petitions received during that five business day period. Petitions received after April 7, 2010 will be rejected.
Note that in most cases individuals seeking H-1B status will not be subject to the H-1B cap if one of the following applies:
- The individual has held or been granted H-1B status within the last six years, and has not used the total 6 years normally allowed for H-1B status;
- The petitioning employer is a nonprofit research organization or a governmental research organization; or,
- The petitioning employer is an institute of higher education or a related or affiliated research institute.
Please contact our office if you have questions on whether or not a prospective H-1B employee is subject to the FY2011 cap.
How This Affects You
We recommend that employers start now to prepare for the upcoming H-1B cap filings so that the petitions are ready for filing by April 2010. This is particularly important given delays inherent with the Department of Labor's new Labor Condition Application process. This process, which in some cases takes several weeks, must be completed prior to filing the H-1B petition.
Persons for whom H-1B petitions may need to be filed include persons in F-1 student status. Many such persons may already be working at the employer pursuant to Optional Practical Training ("OPT"). Employers may also need to file cap-subject H-1B petitions for newly-hired employees living abroad, and should review employees in other nonimmigrant classifications, such as TN or L-1, who may benefit from switching to H-1B classification.
Please contact our office if you have any questions regarding the H-1B FY2011 cap.
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