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The H-1B Visa Blog by Siliato and Malyk

The H-1B cap: The Grinch is coming!

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In recent years, when the economy was more robust, employers filed so many H-1B petitions that USCIS had to create a "random lottery selection" system to establish some fairness among applicants. Indeed, this lottery system was necessary for the past two fiscal years, FY 2008 and FY 2009. In FY 2009, both the general and the advanced-degree caps were reached in the first five days of filing in April, with an estimated total of 163,000 filings.  Similarly, in FY 2008, approximately 125,000 cases were filed in the first two days.  By sharp contrast, this year (FY 2010), more than eight months after the opening of the filing period, the H-1B cap has not yet been reached.  If you don't act fast, however, you may be "on the outside looking in" until October 1, 2010!

As of November 27, USCIS reported it received 58,900 H-1B petitions counting toward the Congressionally-mandated cap.  For some of us, that 58,900 number not only came as a bit of a surprise, but it set off a warning signal - that the H-1B cap is rapidly nearing exhaustion.  Why a warning signal you ask?  Although the H-1B cap is set at 65,000 visas per year (not including the 20,000 visas available under the advanced degree cap exemption), USCIS has, for several years, estimated the demand for Chile/Singapore H-1B1 visas, and has set aside that estimated number by reducing the general H-1B cap to approximately 58,200 visas.  With that carve out in mind, and some simple arithmetic, it would appear then that the cap is oversubscribed, or is it?  

Apparently not, at least not as of today.  Following the November 27 announcement, without revealing the exact number of H-1B1 petitions that have been received under the Chile/Singapore provisions (nor providing an estimate of the number of H-1B visas remaining), USCIS recently indicated that demand for H-1B1 visas under such provisions has been very low this year. Therefore, those set aside (approximately 6,800 visas) should be returned to the general H-1B "pool", with USCIS continuing to accept H-1B petitions.  Thus, though the Chile/Singapore carve out reduces initially the H-1B cap from 65,000 to 58,200, in reality, some "x" number of thousand unused Chile/Singapore visas have been added back into the general count, bringing the number of H-1B visas available under the cap above 58,200.

In sum, according to the latest statements by USCIS, there are still visas available under the H-1B cap.  Notwithstanding, because of the recent surge in petitions being filed (2,000 were filed in the week leading up to the Thanksgiving holiday alone) we have urged our clients to act immediately if they are contemplating the sponsorship of a foreign national for an H-1B visa under the cap.  Indeed, in just a matter of a few weeks (or maybe days), employers will have no choice but to wait until April 1, 2010 to sponsor cap-subject H-1B workers, with a start date of October 1, 2010.

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's "Corporate Immigration Law News" Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

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