1. What is the H-1B cap count reported as of today?
USCIS reports that, as of December 8, 2009, it had received approximately 61,500 H-1B cap-subject petitions, an increase of 400 since the last count on December 4. USCIS has approved a sufficient number of H-1B petitions for individuals with advance degrees to meet the 20,000 advanced degree cap. Any H-1B petition filed on behalf of a foreign national with an advance degree will now count towards the standard cap.
2. How much time is left to file FY 2010 H-1B cap cases?
We are advising companies to file cap-subject H-1B petitions as soon as possible because the rate of H-1B cap filings has been increasing at a fast pace, and we could be closer to reaching the FY 2010 cap than USCIS statistics suggest. Filing quickly can minimize the possibility of being shut out by a sudden announcement that the cap has been reached.
3. Do we know exactly how many H-1B numbers are left for FY 2010?
There are some open questions concerning how USCIS is counting FY 2010 H-1B cap cases, which make it difficult to determine how many numbers are left. The H-1B cap is 65,000 per fiscal year. Sixty-eight hundred standard H-1B cap numbers are set aside each year for the Chile-Singapore H-1B1 visa category, but in previous years, only 700 to 800 Chile-Singapore numbers were actually used, so approximately 6000 numbers were put back into the cap. All indications are that USCIS will apportion the numbers the same way this year. Still, the number of available slots left may be closer 3000 than 4000.
4. Does USCIS take in a surplus of cases?
Usually, the agency takes in more cases than there are quota numbers, because some filings will be denied, withdrawn or revoked, but it does not disclose with exact certainty the number of petitions it thinks it will need to meet the annual H-1B quota.
5. What about excess advanced-degree cases?
USCIS exempts from the H-1B cap the first 20,000 H-1B petitions filed for foreign nationals holding U.S. advanced degrees, but it is not clear exactly how the agency counts these cases. USCIS has said that it has received enough cases to fill 20,000 advanced-degree slots, but that it would continue to accept advanced degree cases and count them against the standard cap. USCIS indicated that its filing surge in late October was at least partially the result of spilling over advanced degree cases into the standard cap pool. We do not believe that USCIS is holding any more advanced-degree cases to apply to the standard cap, but the agency has not addressed this question directly.
6. Is USCIS still going to hold a cap lottery?
The regulations don’t require USCIS to hold a lottery of H-1B cases received on the day it determines that the cap has been reached, and the agency hasn’t yet specified whether it will do so this year.
Each cap season, USCIS designates a “final receipt date” – the date when the agency determines that it has received enough cases to meet the cap. If, on the final receipt date, USCIS receives more cases than needed to meet the cap, it can hold a lottery to choose the winning cases from that day’s receipts. (When the final receipt date occurs during the first five business days of the filing season, cases received during the first five business days are put into the lottery.)
In the last several years, USCIS has used a lottery to select from the cases that were received on the final date. This year, though, the pace of cap usage has been much slower than in the recent past. For this reason, we don’t have a clear indication whether the agency will run a lottery.
7. Why is usage picking up? What should employers do now? What about planning for FY 2011?
Some of the increase in usage is attributable to the spill-over of excess advanced degree numbers to the standard cap pool a few weeks ago. The quicker pace of H-1B filings also seems to be due to a genuine increase in demand – possibly because of a pickup in hiring.
While there are many possible reasons for the increase, it is more important for employers fully assess their hiring needs for FY 2010 and begin to seriously evaluate their hiring needs for Fiscal Year 2011. Though there may be less pent-up demand for H-1B numbers when the FY 2011 H-1B filing season begins next April, at least relative to previous years, it will undoubtedly still be a factor, and the increased rate of H-1B filings in the last month may be an indication that hiring may proceed at a more normal pace than expected.