It’s January, Do You Know Where Your H-1Bs Are?

January 20, 2010

On April 1, 2010, U.S. Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions for FY 2011, with an employment start date of no sooner than October 1, 2010. Although the FY 2010 H-1B visa cap was not reached until December 2009, it appears that the demand for H-1B visas is increasing. Some financial institutions that did not file H-1B petitions last year due to the H-1B restrictions placed on TARP recipients have since paid back the funds and are expected to file petitions this year. Accordingly, we recommend that all H-1B petitions subject to the FY 2011 cap be sent to the relevant USCIS Service Center by overnight mail on March 31, 2010. Please note that all H-1B petitions subject to the cap received by USCIS before April 1, 2010 will be rejected.

Only petitions filed on behalf of foreign nationals who have not previously been counted against the H-1B cap are subject to the H-1B cap. Petitions on behalf of foreign nationals who have previously been counted against the H-1B cap or who are employed at an institution of higher education, nonprofit research organization, or governmental research organization are not subject to the cap.

While there has been discussion of a possible online H-1B registration system that would allow petitioners to “register” for an H-1B number without having to submit the entire H-1B package, it does not appear that such a system will be in place in time for FY 2011 filings.

What Is the H-1B Cap?

By statute, the number of available H-1B visas is subject to an annual fiscal-year limitation of 65,000. By law, 6,800 of the 65,000 visa numbers are allocated as H-1B1s to nationals of Chile and Singapore. In addition, the first 20,000 H-1B petitions filed on behalf of foreign nationals with a master’s or higher degree from a U.S. university are exempt from the H-1B cap.

How This Affects You

It is very important that employers review any possible need to file H-1B petitions now, especially with respect to the following categories:

  • Recent graduates employed pursuant to F-1 optional practical training

  • Employees in the United States working for an employer in another nonimmigrant status who will be ineligible for continued employment authorization after October 1, 2010

  • Candidates abroad subject to the annual H-1B cap and ineligible for another type of work-authorized status in the United States

We recommend that all employers that wish to file H-1B petitions that will be subject to the FY 2011 cap contact us as soon as possible so that we may begin preparing these petitions.

Morgan Lewis will continue to monitor this process and will update you with any new information. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:

Washington, D.C.
Eleanor Pelta
Eric Bord

San Francisco
A. James Vázquez-Azpiri
Lance Nagel