H-1B Cap Reached for 2011 Fiscal Year

Immigration Alert - January 2011

On January 27, 2011, the Citizenship and Immigration Service ("CIS") announced that the H-1B cap for the 2011 fiscal year had been reached on January 26, 2011. Any H-1B cases received by the CIS after January 26, 2011 will be rejected and returned. The USCIS will place all cap-subject H-1B petitions that were received on January 26, 2011 into a lottery and winners will be chosen through a computer-generated random selection process. H-1B1 visas continue to remain available for Chile and Singapore citizens under their respective Free Trade Agreements.

The CIS makes available 58,200 new H-1Bs each fiscal year, plus 20,000 new H-1Bs for foreign nationals with a Master’s degree or higher from a U.S. academic institution. A total of 6,800 H-1B1 visas are made available to citizens of Chile and Singapore pursuant to Free Trade Agreements (FTAs) with those countries. The unused visas from the FY 2010 H-1B quota allotted to Chile and Singapore under their FTAs – approximately 6,000 - were added back to the 58,200 tranche for the current year. However, the recapture and reallocation of these visas has not alleviated the shortage, even in this bumpy economy.

As in prior years, the 6,800 H-1B1 visas set aside for citizens of Chile and Singapore will go largely unused, but they cannot be added back to the quota until FY 2012 – i.e. the H-1B visa quota covering the period October 1, 2011 to September 30, 2012. Employers seeking to sponsor H-1B workers who are subject to the H-1B cap will need to wait until at least April 1, 2011 to file an H-1B petition for employment authorization commencing October 1, 2011.

Given this news employers should be careful when recruiting and interviewing candidates. If a candidate indicates that he/she will require sponsorship, try to determine whether the candidate has previously been issued an H-1B visa in the past several years. These candidates may be exempt from the annual H-1B cap. If the candidate has previously held H-1B status, it is important also to know whether the H-1B visa was for employment with an “exempt” institution. Institutions of higher education or “affiliated” employers, non-profit research organizations and governmental research organizations are exempted from H-1B numerical limitations. A candidate that has only held H-1B status through one of these “exempt” employers will be subject to the H-1B cap when moving to a non-exempt H-1B employer.

There may be other visa options that will allow for employment of candidates who would otherwise require a cap-subject H-1B visa and have not been counted against the quota. For example, recent U.S. college graduates who are in F-1 status and have earned a bachelor’s degree or higher in a STEM (Sciences, Technology, Engineering or Mathematics) designated field may be able to extend their Optional Practical Training (OPT) for an additional 17 months beyond their current 1 year of authorized employment. Other F-1 recent graduates may be able to later receive “cap gap” relief that will bridge their ability to remain employed until the effective date of a new H-1B petition. Citizens of some countries have more options available than others. A citizen of Australia may be eligible for an E-3 visa. Citizens of Chile or Singapore may be eligible for an H-1B1 visa. Citizens of Canada or Mexico may be eligible for TN visa status. If the individual is highly accomplished, an O-1 visa might be an option if a track record of extraordinary achievement can be documented.

With unemployment still quite high the prospects for a legislative fix are dim in the H-1B employment arena. A follow-up Alert will be issued should anything promising appear on the horizon between now and October 1.

If you have questions about how the exhaustion of the FY 2011 H-1B cap may affect your company, please contact John Gallini or Don Parker.

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