For the first time in several years, the annual fiscal year H-1B “cap” was not reached in the first week of filing eligibility. Historically, U.S. Citizenship and Immigration Services (USCIS) received on the first day (last year redefined as the first week) of April more petitions than it had slots available for the entire year. USCIS then resorted to a "lottery system" to allocate those slots. According to USCIS, as of April 20th, there are still 21,000 slots available for fiscal year 2010 H-1B cap-subject cases.

H-1B petitions can request an October 1, 2009 start date of employment. Employers that employ workers in statuses such as F-1 (student), J-1 (exchange visitor), L-1B (intracompany transferee with specialized knowledge) and some other temporary visa statuses may need to file an H-1B petition to retain a foreign national employee without a gap in employment authorization.

Now is the time to scour your employee roster and determine if your workforce includes foreign national workers who are on a time-limited work authorization. Particularly, employers may wish to review which employees will be May graduates from bachelor's and master's degree programs who would not have met the eligibility requirements on April 1, 2009.