Finnan, Fleischut & Associates

Fiscal Year 2010 H-1B Numbers

This announcement shall serve as a reminder that employers may begin filing new ‘cap-subject’ H-1B petitions for the next Fiscal Year on Tuesday, March 31, 2009, for receipt at USCIS Service Centers on Wednesday, April 1, 2009.  USCIS’ 2010 Fiscal Year begins October 1, 2009.  “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).  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.  Last year, the regular H-1B cap was reached within the earliest permissible filing window, from April 1 to April 5, 2008; and as a result, approximately 160,000 petitions were subject to a computer-generated lottery.  The 20,000 Master’s degree exemption limit was also reached within that same period.  Most practitioners believe that the cap will again be reached in the first week of filing, absent congressional intervention to increase available H-1B numbers.