H-1b count - slow and steady

Fiscal 2012 H-1b count - weekly update here

As of April 15th the USCIS has accepted filings for 7,100 "regular cap" H-1b petitions, and 5,100 "Master's exempt" petitions.  The count is updated weekly by USCIS.  With a total of 85,000 H-1bs available (including 20,000 for the Master's exemption), we don't expect the H cap to be reached for some time.   The cap for fiscal 2011 wasn't reached until the end of January, 2011.  We are not yet ready to predict if H-1b cap numbers will still be available in January, 2012.

H-1b cap reached for Fiscal 2011

Filings begin April 1, 2011 for year starting October 1, 2011

On January 27th, the USCIS announced that it has received sufficient H-1b petitions to reach the statutory  cap for fiscal year 2011 as of January 26th.  Petitions received after January 26th will be returned.  Petitions received on January 26th will be subject to a random lottery.

This means that:

• Cap subject petitions will not be accepted from now until April 1st.
• Cap subject petitions filed on April 1st or after cannot request a start date prior to October 1, 2011.
• Filings can still be made to extend employees currently in H-1b status,
• Filings will still be accepted for H-1b employees to change employers

A word about F-1 students with valid EADs.

F-1 students may not file for a change of status to H-1b until April 1, 2011.  If they have Optional Practical Training which expires before October 1, 2011, and an H-1b petition for change of status is filed before their OPT expires, then the OPT is automatically extended until October 1, 2011, or until the H-1b petition should be denied.    Employers may therefore continue to hire and plan on filing change of status petitions for F-1 students provided they have OPT which is valid beyond April 1st, and the H-1b petition  is filed while their OPT is valid.  There should be no break in employment eligibility if carefully planned.

 

H-1bs still available  - but running out quickly

(USCIS may have posted more recent count here)

In two weeks, an additional 3700 petitions have been counted against the cap or master's exemption.  The Master's Exemption is now exhausted, and petitions filed from this point claiming that exemption will be counted against the regular cap.  In November we predicted the cap would be reached in early February.  It is becoming more likely now that the cap will be reached some time in January.  (Posted 1/6/2011)

 

FY 2011 H-1B Cap Count as of 12/31/2010

Cap Type	Cap Amount	Cap Eligible Petitions	Petition Target	Date of Last Count
H-1B Regular Cap	65,000	57,300		12/31/2010
H-1B Master’s Exemption	20,000	20,000		12/31/2010

 

 

FY 2011 H-1b Cap Count as of 12/17/2010

Another 4,000 H petitions (cap subject or master's exempt) petitions were filed in the 3 weeks before December 17th.  The Master's Exemption is virtually exhausted.  Petitions filed claiming the Masters Exemption will soon be counted against the regular cap.  The USCIS has not yet revealed the "Petition Target" - which accounts for a percentage of filings being denied.   We still believe that the H-1b cap may be reached in early February.  However, there is a possibility it will be reached in mid January, if filings accelerate as the cap gets closer.

Cap Type	Cap Amount	Cap Eligible Petitions	Petition Target	Date of Last Count
H-1B Regular Cap	65,000	53,900		12/17/2010
H-1B Master’s Exemption	20,000	19,700		12/17/2010

 

FY 2011 H-1B Cap Count as of 11/26/2010

Cap Type	Cap Amount	Cap Eligible Petitions	Petition Target	Date of Last Count
H-1B Regular Cap	65,000	50,400		11/26/2010
H-1B Master’s Exemption	20,000	18,400		11/26/2010

Now it is getting close....   There are less than 17,000 cap subject and master's exempt 2011 H-1bs still available as of the end of November.  If the current rate continues, the cap will be reached in about three months.    As the cap gets closer, the rate of usage will accelerate.   It looks like we should still have H-1bs available in December and January.  Beyond February is questionable.

Filings for fiscal year 2012 which begins on October 1, 2011 will begin on April 1st, 2011.

 

FY 2011 H-1B Cap Count as of 11/12/2010

 

Cap Type	Cap Amount	Cap Eligible Petitions	Petition Target	Date of Last Count
H-1B Regular Cap	65,000	47,800		11/12/2010
H-1B Master’s Exemption	20,000	17,400		11/12/2010

 Around 42,000 new H petitions were receipted as of 8/13/2010.  Three months later, 65,000 have been receipted.  At the current rate, the cap may be reached in early February, 2011.

 

FY 2011 H-1B Cap Count as of 10/1/2010

 

Cap Type	Cap Amount	Cap Eligible Petitions	Petition Target	Date of Last Count
H-1B Regular Cap	65,000	40,600		10/1/2010
H-1B Master’s Exemption	20,000	14,900		10/1/2010

Six months after the start date for fiscal 2011 filings, only 40,600 of 65,000 cap subject H-1bs have been approved.  In previous years, the cap was exhausted on the first week!   At the current rate, the 2011 H-1b cap may not be reached until April, 2011.  We still advise filing cap subject H-1b cases sooner rather than later. 

The USCIS periodically publishes updates to the H-1b count.

---

Previous updates:

As of May 14, 2010 only 19,000 cap eligible petitions have been received by USCIS.  Only 8100 petitions have been filed claiming the H-1b Master's Exemption.    At the current rate, H-1bs may last through the end of the calendar year, or beyond.  (The "cap" for H-1bs is 65,000.  There are an additional 20,000 H-1bs available under the Master's Cap Exemption.)

We still recommend filing for H-1b status as employees are identified who can qualify for H-1b status.  A change in the law - or a change in the economy, can return us quickly to the situation of prior years where we ran out of H-1bs at the beginning of April.

 

April 1, 2010 - H-1b "Lottery" Begins Again!

USCIS to accept new H-1b filings beginning April 1, 2010

Contact our office NOW to begin processing new H-1bs

 

 

On April 1, 2010, the U.S. Citizenship and Immigration Services will start accepting filings of new H-1b petitions for the fiscal year

which begins on October 1, 2010. There is an annual "cap" on new

petitions. Less than 65,000 can be approved subject to the cap.

An additional 20,000 petitions can be approved for "cap exempt"

aliens (i.e. those who have masters degrees from U.S. universities.)

 

For fiscal years 2008 and 2009, the "cap" was reached at the beginning of April!  The "extra" H-1bs for those with U.S. master's degrees were used up within weeks.  For fiscal 2010, the cap was not reached until December -  nine months before the end of the fiscal year.

Applications received after the date the cap is reached will be returned.  Applications received on the date the cap is reached will be subject to a lottery selection process.

Prediction:  

• The general H-1b cap will probably not be reached the first day - April 1, 2010.
  
• The "master's exemption" cap will be exhausted prior to the general cap being reached.
• Based on what we believe is an increase in technology hiring demand over this time last year, we believe the H-1b general cap will be reached well before it was this year.
  

 

What this means to you:

 

If you have employees who will be needing H-1b sponsorship any time between now and October 1, 2011, you should be prepared to file an H-1b petition on April 1, 2010 or as soon thereafter as possible.  This includes current non U.S. employees who are not now in H-1b status, and whose employment authorization will end before October 1, 2011.

 

Plan on filing April 1st for F-1 students with optional practical training to keep them employed after the expiration of their current employment authorization.  

A new H-1b petition will grant H-1b status no earlier than October 1, 2010.  An employee whose F-1 or J-1 current employment authorization expires before that date and for whom an H-1b petition is filed while they still maintain employement authorization, will have their employment authorization automatically extended through October 1, 2010 (or the date of adjudication, if their H-1b petition is rejected.)

 

Consider filing H-1b petitions for employees with other types of immigration status - even if their employment authorization extends beyond October 1st, 2010.  It may not be possible to extend their status later.  We can offer advice as to particular situations.

 

Once the H-1b cap is reached, the USCIS will no longer accept new cap subject applications for H-1b status for the fiscal year which begins October 1, 2010 and ends on September 30, 2011.

 

 

What you should do now:

 

Identify any current employees who have temporary work authorization such as F-1, J-1, J-2, L-2, E or TN.   In some cases you may want to consider filing H-1b petitions for L-1a or L-1b employees to avoid the five or seven year limit on L-1 stays.  

 

Notify your recruiters that before offering employment to new graduates with optional practical training, they should verify that employment authorization extends at least until an H-1b petition may be filed on their behalf.  They should notify HR immediately so that an application for H-1b change of status can be promptly prepared and  filed. 

 

Contact our office.  As soon as you identify current employees or new hires who will need H-1b sponsorship, notify our office to begin process.

Petition for L-1b employees you want to keep beyond five years.  Because L-1b employees are limited to five years, and H-1b employees may be extended indefinitely once a preference petition is approved, consider filing petitions to change your L-1b employees to H-1b.  Don't wait until the fourth year - as the chances of any particular application being selected in the H-1b lottery in the future is not guaranteed, and may be less than 50% if H-1b cap demand increases to historic levels again.

Petition for some TN employees.  If you may be filing labor certification applications for employees currently in TN status, consider filing for change to H-1b status now.  "Dual intent" (immigrant and nonimmigrant) is consistent with H-1b status - not with TN.  Therefore, renewing TN status may be difficult once the labor certification/preference process begins.

 

FACTS