This announcement shall serve as a first reminder that employers may begin filing new ‘cap-subject’ H-1B petitions for the next Fiscal Year on Wednesday, March 31, 20010, for receipt at USCIS Service Centers on Thursday, April 1, 2010.  USCIS’ 2011 Fiscal Year begins October 1, 2010.  "New ‘cap-subject’ H-1Bs" are petitions for persons for whom employers seek H-1B status who have not previously held H-1B status within the past six years unless that person would be eligible for a full new six years of H-1B status.  As always, foreign workers who already hold H-1B status in the U.S. are not subject to the annual numerical limits (the "cap"); these include extensions of stay, amendments, and change of employer H-1B petitions (unless the previous employer was a ‘cap-exempt’ entity, such as a university or non-profit research institution).  Persons changing status back to H-1B who have previously held H-1B status within the last six years and who have not been absent from the U.S. for at least a year since holding H-1B status are also not subject to the ‘cap.’  Persons who previously held H-B status within the past six years would not be entitled to a new six years of H-1B status unless they had been absent from the U.S. for at least one year by the time of petition filing, but in that case they would also be subject to a new H-1B cap selection and counting.

The law allocates 65,000 new H-1B numbers annually to H-1B workers, with another 20,000 set aside specifically for those holding advanced degrees (Master’s degree or higher) earned from U.S. universities.  In two prior Fiscal Years, 2008 and 2009, the regular H-1B cap was reached virtually immediately within the earliest permissible filing window in April of each year.  Due to the severe downturn of the economy in 2009, the regular H-1B cap for Fiscal Year 2010 was reached only in December 2009.  It being the case, however, that the current fiscal year’s H-1B allocations have been exhausted, no new cap-subject H-1B approvals will are available until the FY2011 cap filing season opens, as described above.

Since this issue is extremely important to our clients, please begin gathering and providing our office with all necessary paperwork to prepare and process new H-1B petitions as early as possible.  Please also consider take the change of status needs of F-1 students and TN professionals into account when finalizing your prospective H-1B filing decisions for next year.  The regulations require that a person seeking to qualify for H-1B status must have proof that the qualifying educ