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H1B Cap Update: Numbers Still Available

As of January 7, 2011 USCIS reports that 58,700 of the annual 65,000 allotment of cap-eligible petitions have been approved. Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Those 20,000 have now been reached.

If the annual 65,000 cap is reached in the next few weeks or months, then a new round of H-1B visas will not be available until October 1, 2011. The application window will open again on April 1, 2011. Not all positions/employers are subject to the cap. Our firm can help with analyzing whether a particular position or employer is subject to the cap. If an employer or position is not subject to the cap, then H-1Bs are available for cap exempt petitions all year long. Whether the cap is reached or not reflects whether employers are hiring and if the economy is improving. In growth years, the cap has maxed out on the first day or within the first few days of the filing season. If hiring levels are poor, then the cap is never reached or it takes much longer to be reached. Since the fiscal year started on October 1, 2010, the cap numbers reflect that there is some growth in the professional level job market despite the poor unemployment figures. H-1B employers are barred from hiring H-1B workers into positions if there were layoffs among those similarly employed within the 90 days before application or within 90 days after the H-1B worker is placed.