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H-1B Cap Reached for FY2011

The annual 65,000 H-1B cap has been reached as of January 26, 2011. That means for the balance of the fiscal year ending September 30, 2011, no new H-1B visas are available for employers with positions subject to the cap if they want to hire foreign talent between now and the end of September. The fact the cap was reached at all is interesting. In an earlier post, GAO Issues Significant H-1B Report , I noted that the cap has been reached every year except for 2001 to 2003 when the maximum available visas were 195,000. But in every year the maximum cap was 65,000, including this year, the cap has been reached well before the end of the fiscal year. Even in a poor economy when hiring has been slow, it has take several months to reach the cap, but several months are left when employers will be out of luck. Reaching the cap at all means there is still job growth in various sectors and that demand has exceeded the supply. Now that the cap is reached, USCIS will not accept any new applications.

Applications will be received once again beginning April 1 for jobs to begin in the next fiscal year starting October 1, 2011. This means that employers desiring to hire foreign professionals should get their hiring decisions made and applications ready in the next few weeks to be ready for receipt at USCIS on April 1.

The following people can continue to file applications now and the rest of the year as they are not subject to the cap again once already counted. Employers who need to:
* extend the amount of time a current H-1B worker may remain in the U.S.;
* change the terms of employment for current H-1B workers;
* allow current H-1B workers to change employers (unless previously exempt from the cap and transferring to a cap position); and * allow current H-1B workers to work concurrently in a second H-1B position.

In addition, employers that are nonprofit research institutions, institutions of higher education, government research institutions, and some private sector companies “affiliated with” the preceding types of entities, can petition for foreign workers all year long and are not subject to the cap. We can help you determine whether your entity or position offered qualifies if there is any doubt. However, USCIS is scrutinizing “affiliate” positions and employers lately. Therefore, legal advice is highly recommended.