U.S. Citizenship and Immigration Services (USCIS) has announced that as of December 21, 2009, sufficient H-1B petitions have been received to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will apply a computer-generated random-selection process to all petitions that are subject to the cap and were received on December 21, 2009, and will reject and return cap-subject petitions received after December 21, 2009.

H-1B petitions filed for those who have previously held H-1B status in the last six years, including requests for an extension of stay or a change of employer, are not subject to the cap. Petitions filed for those employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or governmental research organization, are also exempt from the annual cap. H-1B1 visas are also still available for nationals of Chile and Singapore.

USCIS will accept H-1B petitions for FY2011 beginning April 1, 2010 for employment commencing on or after October 1, 2010. Although the FY2010 H-1B cap was not reached on the first day cap-subject petitions were accepted for filing by USCIS (as it has been in the past), it is likely that the FY2011 cap will be reached very quickly. We recommend that employers plan to have their cap-subject H-1B petitions received by USCIS on April 1, 2010.

What Should Employers Do?

Employers should immediately review their plans for hiring professional foreign workers, and inform their recruiters that candidates needing new H-1B visas cannot commence employment in H-1B status until October 1, 2010, although other visa options may be available.

Employers should plan to file H-1B petitions to be received by USCIS on April 1, 2010 on behalf of the following foreign nationals they may wish to retain:

  • Recent graduates employed pursuant to F-1 optional practical training to ensure continued employment eligibility after expiration of their employment authorization documents
  • Employees in the United States working in another nonimmigrant status and otherwise ineligible for continued authorization after October 1, 2010
  • Candidates abroad subject to the annual H-1B limit and ineligible for another type of work-authorized status in the United States