H-1B Visa Cap

H1B Visa Cap for Fiscal Year 2013 (Oct 2012 – Sept 2013)

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Hello. I wanted to change to H1B visa but I heard that they’ve all been used up. Is this true or can I still apply?

US Immigration law provides for 65,000 H1B visas for each fiscal year. H1B holders filing for extension or transfers are not counted against this annual cap. There is an additional 20,000 H1Bs available for foreign nationals who hold Master’s degrees from US Universities.

USCIS has indicated that all available H-1B visa numbers have been used for FY 2013.  You may apply in April 2013 for an October 2013 start date.

USCIS Providing Some Flexibility With LCA Issues in H1B Visa Applications

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On July 1, 2009 the Department of Labor (DOL) mandated that all LCA filings must be filed through the iCert portal and that individual officers would review filings prior to certification.  While estimated processing times were initially 7 days, human error and other systemic problems resulted in filing taking three weeks or longer.  Because USCIS rules require a certified LCA to be filed along with the H1B visa petition, many H1B visa applicants were not able to timely file their applications and were capped out or failed to file a timely extension or transfer.

Now it has been over 6 months and the DOL has still not fixed the issues, most notably the FEIN problem.  Fortunately, the USCIS has recognized these problems and has given applicants to ways to get around these problems, though neither are perfect fixes.

First, the USCIS will allow H1B visa filings without a certified LCA provided that the LCA was filed with the DOL and has been pending for at least 7 days.  However, the pending LCA must be approved at later filed with USCIS.  This really isn’t much of a solution because the main cause of delay in LCA cases are denials due to FEIN issues.

Second, the USCIS will forgive late filings where the delay was out of the control of the petitioner.  This will be extremely helpful though in cases where the petitioner did not request late filing forgiveness, they will have to pay the fees to reopen the application.

FY 2010 H1B Visa Cap Met

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USCIS has just announced that as of December 21, 2009, they have received sufficient H1B visa petitions to meet the 65,000 general cap.  Petitions received on December 21 will be subject to a random drawing and petitions received after December 21 will be rejected.

USCIS will continue to accept non-cap subject H1B petitions for FY 2010 start dates and will begin accepting FY 2011 petitions on April 1, 2010.

FY 2010 H1B Visa Cap: December 2009 Update

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As of December 12, 2009, USCIS has received 62,900 H-1B Visa petitions and are only 2,100 away from hitting the 65,000 H1B Visa cap for FY2010.  USCIS representatives have confirmed the uptick in applications and have indicated that the cap will be met very soon.  USCIS also confirmed that there is weak demand for visas under the Chile (1,400) and Singapore (5,400) set asides.  If USCIS feels these allocations will go unused, they may return these visas to the general H1B Visa pool.  Regardless, it is unlikely the FY 2010 H1B Visa Cap will last beyond the end of 2009.

FY 2010 H1B Visa Cap

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Current regulations provide for 65,000 H1B Visas to be made available for fiscal year 2010.  Fiscal year 2010 or FY2010 covers the period of October 1, 2009 through September 30, 2010.  There are exceptions such as the 20,000 visas reserved for Master’s degree holders but the majority of applicants will fall under the general 65,000 cap.

FY2010 has been much different than the past several years where a flood of applications were made in the initial filing period and every visa was allocated just weeks into the filing season.  As of this posting, there are still several thousand H1B visas available.  On November 27, 2009, the USCIS announced that 58,900 H1B have been filed, leaving just over 6,000 available.  From October 25 to November 27, 6,100 applications were filed so if filings remain steady, we can expect the H1B cap to be met by the end of the year.

If you intend to file a H1B cap subject application, we recommend filing as soon as possible or you may have to wait until April 1, 2010 to file a FY2011 application.

Obama’s Stimulus Plan and Its Effect on H-1B Visa Applications

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On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 containing the Sanders H-1B amendment.  The Sander H-1B amendment prohibits the sponsoring of H-1B visas by organizations that received funding of through the Emergency Economic Stimulus Act of 2008 (TARP money) unless the organization complies with the requirements of H-1B dependent employers for the next two years.

H-1B dependent employers are defined as employers with:

1.  25 or fewer full time equivalent employees in the US and employ more than seven H-1B visa holders; or

2.  26-50 full time equivalent employees in the US and employ more than 12 H-1B visa holders; or

3.  have more than 50 full time equivalent employees in the US and employ at least 15% of their workforce with H-1B visa holders.

H-1B dependent employers must make certain attestations with regard to US worker displacement, recruitment and hiring. The American Immigration Lawyers Assication (AILA) recently posted a press release stating that these attestation requirements “saddles TARP fund recipients with strict regulations for hiring foreign workers under the H-1B program that are so cumbersome as to amount to an out-and-out prohibition.”

Notwithstanding AILA’s position, this is actually good news for many prospecitve H-1B visa applicants who intend to file this April 2009 for FY2010.  Last April, USCIS was overwhelmed with H-1B applications and the 65,000 H-1B Visa Cap was met in the very first week and tens of thousands of applications were rejected through a lottery system.  If the Sanders amendment precents the large financial firms from applying as AILA as predicted, there will be many more available H-1B visas for applicants from smaller US companies.