H-1B Cap for Fiscal Year 2011 Has Been Reached

U.S. Citizenship and Immigration Services (USCIS) has announced that, as of January 26, 2011, there are sufficient cap-subject H-1B petitions in the pipeline to fill the fiscal year 2011 quota. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. New petitions received after January 26th will be rejected. Those cases received on January 26th will be subject to a computer-generated random selection process. Petitions not selected will be rejected and returned along with the filing fee. Those petitions received prior to January 26th and which remain pending will continue to be processed.

Now that the H-1B cap has been reached, employers will not be able to file new H-1B petitions until April 1, 2011, the start of fiscal year 2012 (FY2012). Petitions filed under the new FY2012 H-1B cap will have an employment start date no sooner than October 1, 2011. In the meantime, it is important to remember that the cap only applies to new H-1B cases, and not to extensions of H-1B status or a transfer of an H-1B visa from one employer to another. The cap does, however, affect those foreign nationals who are in H-1B status seeking to work for new employers but are currently exempt from the H-1B cap based on employment with a university or a related or affiliated nonprofit entity, or employment with a nonprofit or governmental research organization.

Employers should contact any of our immigration attorneys with questions or concerns about how these numbers might impact the hiring of foreign nationals. Although H-1B visas may no longer be available until October 1, 2011, there may be alternative visa options for a particular candidate that we can assist you with. We also encourage employers considering filing a new H-1B petition as part of the FY2012 quota to contact us as soon as possible to begin the process.