As of April 1, 2009, employers can file H-1B temporary (professional) worker petitions for all new workers (that is, workers who are subject to the Congressionally-mandated cap of 65,000) requesting an employment start date of October 1, 2009 (Fiscal Year 2010). The H-1B cap will affect all NEW applicants for H-1B status, either as initial entry or as a change of status. It will also affect filings by cap-subject employers for those foreign nationals who are currently in H-1B cap-exempt status based on employment with a research institution or affiliated organization, who wish to change to a cap-subject organization. Foreign H-1B nationals currently with a cap-subject employer have already been counted and are therefore not subject to the H-1B cap in order to extend a valid H-1B status or change H-1B employers.
This past year (Fiscal Year 2009) the general H cap was exceeded on the first week of filing and USCIS devised an internal lottery system for allocating H-1B numbers. The H-1B quota for U.S. masters-degreed employees has an additional 20,000 visas available, but that number still ran out in April last year.
We therefore recommend that all H-1B cases subject to the cap be started and prepared as soon as possible for filing during the week of April 1, 2009, because the H-1B cap for fiscal year 2010 should be exceeded during the first week.
Employers should make these filing decisions with their H-1B filing needs for October 2009 through September 2010 in mind.
Under current law, once the H cap is reached, employers will not be able to obtain new H-1B visas until April 2010, for October 1, 2010 start dates. This issue clearly affects students working pursuant to Optional Practical Training (OPT) which may be valid into the 2010 fiscal year. For example, even though such individuals may have valid work authorization until February 2010, we recommend a change of status to H effective October 2009 (where appropriate) in order to provide continued work authorization once OPT expires.