Finnan, Fleischut & Associates

Next Fiscal Year H-1B Numbers –

Put on Your Lucky Racing “Cap” (Again)!

This announcement shall serve as a reminder that employers may begin filing new H-1B petitions for the next Fiscal Year on Monday, March 31, 2008, for receipt at the USCIS Service Centers on Tuesday, April 1, 2008.  USCIS’ 2009 Fiscal Year begins October 1, 2008.  New H-1Bs will be available for those foreign nationals who have not previously held H-1B status within the past six years.  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). 

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 (Masters degree or higher) earned from U.S. universities.  This past year, the regular H-1B cap was reached on the first day of filing, subjecting approximately 120,000 petitions to a computer-generated lottery.  The 20,000 exemption limit was reached a few short weeks later, before the end of April. 

Most practitioners believe that the cap will again be reached on the very first day of filing, absent congressional intervention to increase available H-1B numbers.  It is quite possible that even the Masters’ cap could be exhausted on the first day of filing.