As of December 15, 2009 approximately 64,200 H-1B cap-subject petitions had been filed. Because a sufficient number of H-1B petitions for aliens with advanced degrees were filed and, therefore, the exemption of 20,000 from the fiscal year 2010 cap was met, any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. US Citizenship and Immigration Services (USCIS) stated that it will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limit, taking into account the fact that some of the petitions may be denied, revoked or withdrawn.

On December 1, 2009 a USCIS representative discussed a recent increase in the number of H-1B petitions. Typically, the H-1B annual cap of 65,000 is reduced to 58,200 by the free trade agreement visas set aside for Chile and Singapore (from maximums of 1,400 for nationals of Chile and 5,400 for nationals of Singapore). Any unused visas are returned to the "general" H-1B pool. USCIS accepts petitions up to a number that includes an estimate of the number of Chile and Singapore visas that will go unused. Thus, though the Chile/Singapore set asides reduce initially the H-1B cap from 65,000 to 58,200, in reality, some number of a thousand unused Chile/Singapore visas are added back in, bringing the number of H-1B visas generally available to well above 58,200. That is why, according to the latest H-1B cap count, the number exceeds 58,200.

USCIS did not provide an estimate of the actual remaining visas available, but because of the apparent increase in demand, employers should not delay in seeking advice from counsel if they plan to file H-1B petitions for fiscal year 2010. The cap could be reached very soon if the increase in demand continues.