H-1B Cap Visas Still Available for Fiscal Year 2011

On April 1, 2010, U.S. Citizenship and Immigration Services (USCIS) began accepting petitions for H-1B temporary workers for the 2011 fiscal year. If approved, H-1B status becomes effective October 1, 2010. There are only 65,000 new H-1B visas available each fiscal year (with an additional 20,000 reserved for foreign nationals with a U.S. master's degree or higher), and in recent years, USCIS has received more than double this number of petitions on the first date of eligible filing. In those years, USCIS implemented a lottery system to randomly select cases for processing. As a result, many employers now choose to file petitions on the first date of eligible filing in anticipation of a lottery system. This year, however, USCIS announced that it has received only 18,000 petitions counting toward the 65,000 annual cap, and it continues to accept fiscal year 2011 H-1B cap petitions for processing.

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." This cap does not apply to filings for H-1B workers who have already been counted against the annual H-1B quota, which includes 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 U.S. 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, Christl Glier or another member of the immigration group to discuss H-1B eligibility and requirements or consideration of 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.