On April 1, 2010, employers will be able to submit new H-1B petitions to U.S. Citizenship and Immigration Services (USCIS) for Fiscal Year 2011.  As in previous years, April 1 is the earliest date that employers may submit new "cap subject" petitions to USCIS, and Oct. 1, 2010 is the earliest date that a foreign worker may commence employment under a “cap subject" petition.  Employers that anticipate the need to file new “cap subject” H-1B petitions should be prepared to file the H-1B petition with USCIS as close to April 1, 2010 as possible due to the expectation of high demand this year and the possibility of delays related to the Department of Labor's new iCERT system.  The H-1B cap refers to the annual numerical limitations set by Congress for
H-1B non-immigrant classification.  The H-1B cap controls the number of foreign nationals who can be issued a visa in a given fiscal year.  The H-1B cap also controls the number of foreign nationals already in the United States who may be authorized to change their status to a cap-subject classification.  

The current H-1B cap is set at 65,000, of which up to 6,800 H-1B visas are set aside each fiscal year for nationals of Chile and Singapore.  In addition, the H-1B Visa Reform Act of 2004 allocates an additional 20,000 new H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution.

Not all H-1B non-immigrants are subject to the H-1B cap.  The H-1B cap generally does not apply to persons who have already been previously counted against the cap and/or are seeking to extend their stay in H-1B status or requesting concurrent employment.  Further, H-1B non-immigrants are exempt from the cap if they are employed by, or have received an offer of employment from, institutions of higher education or a related or affiliated nonprofit entity, as well as nonprofit research organizations or a governmental research organizations.  However, if an employer wishes to hire an H-1B employee who is currently employed at such an entity, the new petition would be subject to the H-1B cap.  Lastly, physicians who have been approved for a Conrad 30 waiver of the two-year foreign residence requirement based on work in a medically underserved area are also exempt from the H-1B cap.
 
In Fiscal Year 2010, the H-1B cap was reached on Dec. 21, 2009.  We anticipate that the demand for H-1Bs will increase this year.  In light of the anticipated demand and because of the timing issues created by the U.S. Department of Labor’s new iCERT system for Labor Condition Applications, employers should identify early which current and/or prospective employees may benefit from an H-1B petition and take the necessary steps to prepare and file their H-1B petitions no later than April 1, 2010.  

For more information on the H-1B cap subject petitions or other immigration issues, please contact Vinh Duong at Waller Lansden at 615-850-8936 or via email at vinh.duong@wallerlaw.com.
 
 

  
The opinions expressed in this bulletin are intended for general guidance only.  They are not intended as recommendations for specific situations.  As always, readers should consult a qualified attorney for specific legal guidance.