On April 8, 2009, USCIS announced that it will continue to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap, as USCIS has not yet received the necessary number of petitions to satisfy either the regular or master’s degree cap. USCIS has received almost half the petitions needed to meet the FY2010 regular cap of 65,000, and has received close to the number of petitions necessary to meet the 20,000 U.S. master’s degree or higher educational exemption cap.

When USCIS receives a sufficient number of petitions to reach the respective caps, USCIS will issue another announcement to indicate that, as of a certain date (the “final receipt date”), the respective FY 2010 H-1B caps have been met. USCIS will then conduct a lottery, including only those petitions received on the final receipt date, to determine which are selected for the final few available numbers. USCIS will base the final receipt date for each petition on the date that USCIS physically receives the petition and not the date that the petition is postmarked.

Therefore, it is critical for employers to file any remaining cap-subject H-1B petitions as soon as possible to ensure the earliest possible final receipt date for inclusion in this year’s cap.

As neither the regular nor master’s caps were reached within the first five (5) business days of availability, USCIS will receipt and process all cap-subject H-1B petitions filed from April 1 through April 7.

Recent updates from USCIS are available from both here and here.

H-1B employers receiving TARP funding. Meanwhile, USCIS has announced additional H-1B requirements for employers receiving Troubled Asset Relief Program (TARP) funding before hiring H-1B specialty occupation workers. The new “Employ American Workers Act” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on February 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation, any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the DOL when filing the Labor Condition Application (LCA).

EAWA applies to any LCA and/or H-1B petition filed on or after February 17, 2009. EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.  

The USCIS notice is available here. USCIS has issued a related Q&A document, which is available here.  

Revised Form I-129. USCIS has revised Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the petitioner has received covered funding. USCIS has posted this form here.