H-1B Cap Immediately Exhausted

As expected, on April 8, 2008, Citizenship and Immigration Services (CIS, formerly INS) announced that the annual quota or cap for H-1B temporary workers for the 2009 Fiscal Year has been exhausted. H-1B petitions for the fiscal year beginning October 1, 2008 were accepted beginning April 1, 2008. While CIS has not yet released figures on the total number of cases received, CIS received more than double the annual number of applications made available for H-1B workers during last fiscal year.

Given the large number of cases received, CIS will again use a computer-generated random selection process (lottery) to select cases against the annual limitation. The lottery will be conducted first for the cases that fall under the 20,000 "advanced-degree" exemption (for graduates from U.S. master's programs), followed by selection for the regular 65,000 available H-1B visas. The advanced-degree cases that are not selected under the 20,000 cap will have a second opportunity for an H-1B visa under the lottery for the regular 65,000 H-1B visas. Any case that is not selected against the lottery will be returned, with the filing fees.

As a reminder, the H-1B annual quota applies to foreign nationals who do not presently hold H-1B status, including those with no prior immigration status in this country and recent graduates who are working during their one year of "Optional Practical Training." For H-1B workers who already have been counted against the annual H-1B quota, this cap does not apply to filings on their behalf, such as requests for extensions of stay or changes in employer sponsor.

The H-1B visa category is the most common classification available to foreign professionals working in the United States. The employer is obligated to pay the H-1B worker a minimum prevailing wage for the offered position and the category is only available for professional level employment which typically requires a minimum of baccalaureate level education. This classification is widely utilized by U.S. companies on behalf of foreign engineers, physicians, professors, managers and other professionals and is often the only available option for temporary employment in the U.S.

Please contact Jenifer Brown or another member of the immigration practice group to discuss the H-1B lottery system and potential alternatives to the H-1B visa category for key foreign workers.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.