H-1B Visa Cap for New Visas Expected to Be Reached On First Day of Filing

It is expected that the H-1B Cap of 65,000 new visas for fiscal year 2009 (October 1, 2008, through September 30, 2009) will once again be reached on the first day of filing. As of April 1, 2008, employers can file H-1B temporary worker petitions for foreign nationals requesting an employment start date on or after October 1, 2008. The 65,000 H-1B 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. It also affects those foreign nationals who are in H-1B status seeking to work for new employers, but who are currently exempt from the H cap based on employment with a nonprofit or governmental research organization.   

Last year, the H-1B Cap was met on Monday, April 2, the first date of filing. (The USCIS received 150,000 cap-subject H-1B petitions on that date, more than twice the 65,000 H-1B cap-subject visas allotted under the regulations each year. The agency established a lottery system to determine which of the 150,000 petitions would be adjudicated and which would be returned, along with the appropriate filing fees.) With this in mind, it is important to begin the preparation of any H-1B filings now! We advise employers who expect to file under the FY2009 cap to start interviewing potential H-1B candidates and finalizing job offers immediately. If you are considering the hiring of a foreign worker who will need H-1B sponsorship, we encourage you to contact us as soon as possible to review your hiring plans. 

Keep in mind that there are an additional 20,000 cap numbers for foreign nationals with U.S.  advanced degrees. Last year, these numbers were exhausted by May, only one month later, and it is anticipated that the additional 20,000 cap numbers could be claimed on April 1, as well. With this in mind, we encourage employers to file H-1B petitions for advanced degree workers as soon as possible.

Employers are urged to file new H-1B visa petitions under the premium processing guidelines.  Once the H cap is reached, employers will not be able to obtain new H-1Bs until October 1, 2009.

Please do not hesitate to contact a member of our Immigration practice if you have any questions or concerns about how these numbers might affect your hiring of foreign nationals.