The United States Citizenship and Immigration Services (USCIS) has announced that as of December 21, 2009, sufficient H-1B petitions were received to reach the statutory cap for Fiscal Year 2010. USCIS had previously announced that it had received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. In accordance with USCIS policy, all H-1B petitions subject to the cap that were received on December 21, 2009 will be subject to a computer-generated, random-selection process. Any H-1B petitions subject to the cap and received after December 21, 2009 will be rejected and returned.

H-1B petition extensions or petitions filed for a change of employer are not subject to the cap. H-1B petitions filed on behalf of individuals who have held H-1B status at any time during the last six years are also not subject to the cap. Additionally, petitions filed by an institution of higher education or a related or affiliated nonprofit entity, or by a nonprofit research organization or governmental research organization, are also exempt from the annual cap. It must be noted that H-1B1 visas are still available for nationals of Chile and Singapore, under Free Trade Agreements with those countries.

USCIS will begin accepting H-1B petitions for FY2011 on April 1, 2010. The start date for FY2011 petitions can be no earlier than October 1, 2010. It is likely that the FY2011 cap will be reached very quickly; employers should consider beginning the process for cap-subject FY2011 H-1B petitions as early as possible.