In its latest update on the H-1B Cap for fiscal year 2012 (FY2012) released yesterday, the United States Citizenship and Immigration Service (USCIS) indicated that 56,300 H-1B numbers of the 65,000 cap-subject H-1Bs have been used as of Monday, November 14, 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 leaves less than 2,000 H-1Bs for FY2012, as of November 14, 2011.
According to the USCIS' published figures, the rate of cap-subject H-1B filing has averaged 3,000 per week for the last several weeks. At the current rate, all H-1B numbers that are now available will be used up by the beginning of next week. Please note, however, that the unused H-1B1s for Chileans and Singaporeans from the last fiscal year (FY2011) will be added to the H-1B pool for this fiscal year. The USCIS has yet to indicate how many unused numbers are left to be added. Based on the experience of previous years, there may be as many as 6,000 additional H-1B numbers available. If so, there may be enough cap-subject H-1Bs to last two to three more weeks.
As noted in a previous update on the Cap, all 20,000 "Master's Cap" H-1Bs were used up 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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