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H-1B Cap Reached - February 18, 2011

On January 26, USCIS announced that it had received a sufficient number of cap-subject H-1B temporary non-immigrant petitions for employment commencing during the current fiscal year (October 1, 2010 to September 30, 2011). Cap-subject employers seeking to employ new professional workers now must wait until April 1 of this year to file new petitions for employment commencing October 1, 2011.

Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 slots are available to workers with advanced degrees (masters or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore). While not all H-1B applicants are subject to the cap, the vast majority in business are subject.

For the second year in a row, H-1Bs remained available for some 9-10 months after the U.S. government began accepting applications. Even in 2009, with the recession beginning to take hold, employers snapped up the 65,000 visas available in just one day, as they had for the past several years. While the weakened economy no doubt has played a significant role in lessening the demand for the once-coveted visa, more recently companies have become increasingly reluctant to petition for foreign workers in the face of rising costs and greater governmental scrutiny. In the past two years, several disincentives for H-1B visas were put into place.

 

These include the USCIS:

  • appreciably altering its definition of what constitutes a valid employer-employee relationship
  • adding fees for H-1B "dependent employers"
  • requiring companies that received TARP federal bailout funds to prove they have tried to recruit US workers at prevailing wages and that foreigners are not replacing US citizens
  • effective February 20, requiring that H-1B employers attest that they are in compliance with the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) regarding the release of controlled technology or data. (We will post more information on this issue soon)

Even though the cap has been reached for this fiscal year, some H-1B petitions can still be filed because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who have previously been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.