The United States Citizenship and Immigration Services (USCIS) published an update on the H-1B Cap for fiscal year 2012 (FY2012) yesterday indicating that 49,200 of the 65,000 cap-subject H-1Bs have been used as of October 28, 20111. Note that 6,800 of the total 65,000 H-1B Cap numbers are reserved for nationals of Singapore and Chile pursuant to free trade agreements with those two countries. This effectively leaves 9,000 H-1Bs for FY2012, as of October 28, 2011. The unused H-1B1s for Chileans and Singaporeans will be made available to the regular H-1B pool for the next fiscal year.
According to the USCIS' published figures, the rate of cap-subject H-1B filing has doubled to about 3,000 per week over the last couple weeks. If this rate continues, all currently available H-1B cap numbers will be used up sometime next week. Note, however, that the USCIS has not yet applied the unused balance of H-1B1s from the last fiscal year, or indicated how many are left from that year. Based on the experience from previous years, there will likely be a few thousand additional H-1B cap numbers added to the pool, which may allow for a 2-3 more weeks during which employers may file cap-subject H-1B petitions. In FY2011, for example, 6,350 "leftover" H-1B1s from FY2010 were added to the Cap extending the cap filing season by about three weeks.
As noted in our last update on the Cap, all 20,000 "Master's Cap" H-1Bs were used up in early in the month of October. The Master's Cap refers to H-1B petitions filed for persons who have graduated with a Master's or higher degree from a U.S. university. Petitions filed for the Master's cap will now be treated as Regular Cap H-1Bs until this cap is also reached.
Based on the latest H-1B Cap figures published by the USCIS, we highly recommend that employers consider filing H-1B petitions for employee and/or prospective employees who will need H-1B sponsorship during the current fiscal year as soon as possible. Note that prior to filing an H-1B petition, the employer must file and obtain a Labor Condition Application from the Department of Labor which takes at least 7 days. Also note that if an H-1B petition is filed after the H-1B cap has been reached, all government filing fees will be returned to the employer.
Please note that H-1B petitions are not subject to the cap where one of the following applies:
- The individual has been granted H-1B status within the last six years;
- The petitioning employer is a nonprofit research organization or a governmental research organization; or
- The petitioning employer is an institute of higher education.
Please contact our office if you have further questions about the cap, and whether it applies in a specific case.
We will provide further information as soon as it becomes available.
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