FY 2010 H-1B Cap Count Update

Citizenship and Immigration Services (CIS, formerly INS) recently announced that approximately 61,100 H-1B Cap-subject temporary worker petitions have been filed for the 2010 fiscal year (October 1, 2009 - September 30, 2010) .  CIS also confirmed that it has approved sufficient H-1B petitions for foreign nationals with U.S. advanced degrees to meet the exemption of 20,000 from the FY2010 Cap.  Any H-1B petitions filed on behalf of a foreign national with an advanced degree will now count toward the general H-1B Cap of 65,000.  CIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.  While it is extremely difficult to make any predictions as to when the FY2010 Cap will likely be exhausted, the rate of H-1B filings may continue to accelerate, and exhaustion of the FY2010 Cap could be imminent.

The H-1B annual quota applies to foreign nationals who do not presently hold H-1B status, including 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.   Certain types of employers are also exempt from the H-1B annual quota, including institutions of higher education and related or affiliated non-profit entities (such as hospitals), and non-profit research organizations or government research organizations. 

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, IT professionals, 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 Christl Glier if you have any candidates for whom you would like to proceed with an H-1B filing, or if you would like to discuss H-1B eligibility, requirements or 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.