Skip to Main Content

Keeping you informed

Start Preparing H-1B Cap Subject Cases Now

  • February 03, 2010

Starting April 1, 2010, 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 and 20,000 U.S. Master's graduates) requesting an employment start date of October 1, 2010 (Fiscal Year 2011). 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). 

In this past fiscal year (FY2010) H-1B numbers did not run out until December 2009, which allowed employers a period of over eight months to file H-1B petitions. However, in earlier years the general H-1B cap was exceeded during the first week of filing in April and USCIS devised an internal lottery system for allocating H-1B numbers.

We are therefore recommending that H-1B cap subject cases be started and prepared as soon as possible for a filing during the week of April 1, 2010, since the H-1B cap may be exceeded during the first week. We strongly recommend that employers now consider all H-1B filing needs for October 2010 through September 2011.
Under the law, once the H-1B 2011 cap is reached, cap subject employers will not be able to file new H-1B cases until April 2011 for October 1, 2011 start dates. This clearly affects foreign students working pursuant to Optional Practical Training (OPT) which may be valid into the 2011 fiscal year. Even though such students may have valid work authorization until mid 2011, we would recommend a change of status to H-1B, effective October 2010 (where appropriate), to provide work authorization once OPT expires. Note: All immigration cases are different, so please contact your attorney to discuss any specific individual case.