USCIS Announces that FY 2011 H-1Bs Remain Available

USCIS announced today that the number of FY 2011 H-1B petitions it received during the initial filing period of April 1 through April 8, 2010 did not meet the statutorily mandated cap of 20,000 for individuals with a U.S. advanced degree, or roughly 65,000 for all other H-1B beneficiaries. That means that any case received during that time should be accepted for processing. It will continue to accept H-1B filings until such time as the numerical limitations are reached. As a reminder, FY2011 begins on October 1, 2010, and H-1B petitions filed for this allocation must have a starting validity date of October 1, 2010 or later.

USCIS reports that, as of April 8, 2010, it had received 5,600 petitions under the U.S. advanced degree allocation, and 13,500 petitions under the standard H-1B allocation. Although our practice did not expect a high number of filings this year, the numbers are still shockingly low.

Even the initial filings received in April 2009 for the FY 2010 H-1B allocation were much higher – approximately triple the total received this year! And while the H-1B cap was not exhausted in the 2010 fiscal year until December 2009, in prior years, both the regular H-1B cap of 65,000 and the “U.S. Master’s Degree” cap of 20,000 were reached, and sometimes far exceeded, during the initial filing period which resulted in a lottery selection of petitions.

The relatively small number of cases filed this year are most likely the result of both the extended availability of H-1Bs in 2009, coupled with the slow upturn in the job market. As the job market improves, it is likely that the number of H-1B filings will increase. Based on the initial filings, it seems likely that the FY2011 supply of H-1Bs will remain available well into the coming year. Although it is a great relief for employers to have better access to the H-1B, the impending exhaustion of H-1B availability remains a dark cloud on the horizon, especially as the economy picks up steam, and hiring speeds up. It seems like a very long time ago that an employer could simply file an H-1B petition whenever it identified a foreign worker it wanted to employ who needed the visa category to work. We hope to see those days again.

When USCIS determines it has received a sufficient number of petitions to satisfy the cap, it will identify the date on which the cap was actually met, and will notify the public of that “final receipt date.” Notification may come on a date that is different from the final receipt date - perhaps several days later. Only petitions received at the USCIS by the final receipt date will be considered filed; postmark stamps or courier pick-up dates do not render a petition “filed.” A random lottery of petitions received on the final receipt date may be necessary to determine the selection of the cases that satisfy the remaining available H-1B numbers. Any cases received on the final receipt date, but not selected in the random lottery, and those received after the final receipt date, will be rejected.

We will keep you apprised of further developments in the 2011 H-1B cap.

Important Reminders Regarding F-1 Students & H-1B “Cap Gap” Issues

Although new H-1Bs are apparently plentiful this year, its important to remember that many students have status and work authorization that will expire prior to the beginning of the fiscal year on October 1st, when the new H-1B approvals can be used. Under “cap-gap” regulations issued in 2008, certain F-1 students with pending or approved H-1B petitions are allowed to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up through the start of their approved H-1B employment. The regulations provide a useful mechanism for filling the “gap” between the end of a student’s F-1 status and the beginning of H-1B status.

The F-1 student must be in lawful status at the time of the H-1B petition filing, and the H-1B petition must include a request for change in nonimmigrant classification. An F-1 student whose post-completion Optional Practical Training (OPT) expires between April 1, 2010 and September 30, 2010, and who is the beneficiary of an approved H-1B petition, will have her F-1 status and work authorization will automatically extended through September 30, 2010, unless the H-1B petition is later denied or revoked. An F-1 student who was within her 60 day grace period at the time of filing the H-1B petition, and who has been granted H-1B status, will only receive an automatic extension of her F-1 status through September 30, 2010, and will not receive a new period of work authorization.

While a student’s status is automatically extended under the cap gap provisions, it is the student’s responsibility to contact her school’s Designated School Officer (DSO) to ensure that her SEVIS record properly reflects her current status. If the student’s SEVIS record is inaccurate, the student should ask the DSO for a “data fix,” and provide evidence that she is entitled to an extension (i.e. a copy of the H-1B receipt notice or approval notice).

Generally, any student who seeks to travel outside of the U.S. while working on her OPT must be in possession of a valid visa and SEVIS authorization to return to the U.S. If the student is in the U.S. and working pursuant to the “cap gap” rule, however, she will not be able to return to the U.S. until an H-1B visa is issued in her passport. As H-1B petitions typically have October 1st as the initial validity date, the earliest the student could return to the U.S. in H-1B status would be September 20, 2009, ten days before the start of the petition, and she could not begin working until October 1, 2009. It is therefore important for employers and student workers to carefully consider the implications of travel during the cap gap extension period prior to the student leaving the U.S., and to address and adjust travel plans accordingly.