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Immigration Update

New H-1B visas still available, but for how long?
November 3, 2009

Yesterday, U.S. Citizenship and Immigration Services (CIS) reported that as of October 25, 2009, it had received approximately 52,800 petitions against the 58,200 H-1B standard cap numbers available (6800 are reserved for Singapore and Chilean nationals) and 20,000 petitions against the cap exemption for foreign nationals holding U.S. advanced degrees, thus exhausting the advanced degree cap. The agency is still accepting H-1B filings for those who qualify and will be counted against the standard cap.  

While H-1B numbers have been used much more slowly this year than in recent years, this is likely to increase as we near the end of the calendar year given the improving national economic picture and the award of new college degrees this December.  While CIS used to provide an updated H-1B cap count on a weekly basis, the published count had not been updated in more than a month.   

The most recent previous weekly update was published as of September 25th, and showed a sharp increase in H-1B number usage over previous weeks, with 46,700 H-1B's used by that date. Historically CIS has delayed publishing H-1B cap updates when they near the limit.  Yesterday's announcement proved this to be true as more numbers had been used in the last month than in the previous four months combined.   If H-1B numbers continue to be used at this rate we anticipate the cap could be hit by the end of this month, possibly sooner. Also, the new icert Labor Condition Application (LCA) system, a prerequisite for filing an H-1B petition, is now taking five to seven business days to process LCA's needed for the H-1B filing. 

As such, we recommend employers initiate the H-1B process now if they require an H-1B for a new worker or are considering transitioning an existing worker to an H-1B to allow for extensions during a lengthy Green Card process. In our experience, by the time CIS announces they are nearing the cap limit, it will be too late to acquire a certified Labor Condition Application from the Department of Labor and file the H-1B petition before the cap is hit. Persons currently in H-1B status who have been counted against the cap in previous years are not subject to the H-1B cap for extensions or changes in employers.   

Any H-1B petition subject to the annual H-1B cap that is not filed before the current year's numbers run out can be filed on April 1, 2010, requesting an October 1, 2010 start date. At time of publication, the October 25th H-1B cap count update is the last one posted by USCIS.

To initiate a new H-1B cap-subject filing, please contact a member of the MVA Immigration Team.