As we anticipated in our December 21st Client Alert, U.S. Citizenship and Immigration Services (USCIS) announced yesterday that the Fiscal Year 2011 H-1B cap was met on Wednesday, January 26, 2011. USCIS stated it will reject any cap-subject petitions for new H-1B workers seeking an employment start date in FY2011 that are received after January 26, 2011, regardless of when they were postmarked. This means that no new H-1B employment start dates may be requested from January 27, 2011 through September 30, 2011. The next filing period for new H-1B visas will take place during the first five business days of April 2011, i.e., April 1st through April 7th, for H-1B status that will be effective on October 1, 2011, the beginning of the U.S. government’s next fiscal year.
The cap has been reached significantly later than in previous years, including last year (FY2010), when the cutoff date was December 21, 2009. As a reminder, FY 2010 was the first time in several years where H-1Bs have been available for immediate validity after October 1st. During the recent past, demand for this work visa has vastly outpaced the limited supply, resulting in a random allocation of the visas. When the number of petitions received outpaces the available supply of H-1Bs on the day the cap is met, USCIS runs a random lottery to allocate that supply. If the cap is exhausted within the first five business days of when petitions may be filed – i.e., April of each year – the lottery will select randomly among all cases received during that time. If the cap is met on any other day, then the lottery will select randomly from the cases received on that day alone. Petitions can normally be filed only six months prior to the expected start date, and since the visas became available (and were exhausted) on the first day of the fiscal year – October 1st – the filing date of April 1st was critical for H-1B employers. Lower use of the H-1B category in this fiscal year is generally attributed to the economic decline, and particularly the weak job market. What the timing of this announcement means for the next fiscal year we can only guess.
As background, current immigration law contains a "cap" of 65,000 new H-1B approvals each fiscal year, of which up to 6,800 are set aside for the H-1B1 visa program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Because so few of the Chilean and Singaporean H-1B1s are utilized, the vast majority of the set-aside is utilized for the standard H-1B cap. In addition to the standard H-1B cap pool, the H-1B Visa Reform Act of 2004 makes available 20,000 additional H-1B numbers for foreign workers with a master’s or higher degree from a U.S. academic institution. The following are not subject to the cap: H-1B petitions for amendment or extension of status, including new employers, and requests for concurrent H-1B employment; petitions filed by exempt organizations, including institutions of higher education, nonprofit research organizations or entities related or affiliated with an institution of higher education, or a nonprofit research organization or governmental research organization; H-1B petitions for J-1 nonimmigrants who received a waiver of the two-year foreign residency requirement based on certain interested state or federal agency requests; and H-1B petitions for beneficiaries who were counted against the cap within the preceding six years, unless the beneficiary is entitled to request a new six-year period.