November 30, 2009

H-1B Visas Almost Gone

U.S. Citizenship and Immigration Services (USCIS) is reporting that as of November 6, 2009, approximately 58,900 H-1B cap-subject petitions have been filed. USCIS has approved sufficient H1-B petitions for aliens with advanced degrees to meet the exemption of 20,000 for the fiscal year 2010 cap. Therefore, any H1-B petitions filed on behalf of an alien with an advanced degree will now count toward the general H1-B cap of 65,000. Overall, the H-1B cap had been inching up very slowly. However, in the past month, we have seen a big jump in the H-1B count. It is hard to predict when the cap will be reached, but we recommend filing any potential H-1B cap cases immediately.

Last year, USCIS received approximately 163,000 petitions during the initial five-day filing period, and among those USCIS conducted a random selection process to select 65,000 petitions for the H-1B cap plus 20,000 petitions for the advanced degree cap. Because of the downturn in the economy, the FY 2010 cap was not met immediately as in the past few years.

The Department of Labor (DOL) announced in December 2008 that due to heightened fraud in H-1B filings it would start closely scrutinizing the Labor Condition Applications (LCA), which must be certified by the DOL before H-1B petitions can be filed. This has caused a delay in filing many H-1B petitions as LCAs can take up to seven days to adjudicate. This is true as a general rule and it can take more than seven days for one requiring further investigation such as for a proper wage determinations. In addition, there are additional delays when the DOL sends a request for proof of an employer’s federal tax ID number (FEIN). In some cases, employers are experiencing a two to three week lag time between filing and receipt of an LCA approval.

As a result of the quick jump in the H-1B cap case count and the delays in processing the LCAs, employers are urged to prepare and file any potential H-1B cap-subject petitions as soon as possible. We expect that the cap will be reached very quickly. We encourage you to look ahead and assess the employment needs of your foreign national staff, including new hires and those employees currently working on practical training as students (F-1) or as exchange visitors (J-1).
Please note that employers generally will not need to obtain new H-1B visas for lateral H-1B hires. Further, institutions of higher education, nonprofit research organizations, and government research organizations continue to be H-1B cap exempt.