H-1B visas

USCIS started accepting H-1B applications for fiscal year 2012 on April 1, 2011. H-1Bs filed pursuant to the 2012 fiscal year cap will become effective on October 1, 2011. As of April 15, 2011, USCIS had received 7,100 H-1B applications under the regular 65,000 H-1B cap and 5,100 applications in the master’s exemption pool of 20,000 cap numbers.

It is impossible to predict, exactly, how quickly the H-1B cap numbers will be exhausted so all employers are encouraged to start work on H-1B cap cases in the near future.

USCIS recently announced that the H-1B cap has been reached for this fiscal year. Accordingly, USCIS will not accept any filings for new, cap-subject H-1B applications until April 1, 2011. The applications filed on or after April 1, 2011 will have an effective date of October 1, 2011.

This development does not impact cap-exempt employers, like universities or non-profit research institutions, and does not impact individuals who already possess H-1B visas who are transferring to new employers.

Companies who have individuals working on Optional Practical Training (OPT) or who seek H-1B visas for current or future employees should start preparing new H-1B applications well in advance of April 1, 2011.

As of December 31, 2010, USCIS had accepted 57,300 cap-eligible petitions which have either been approved or are still pending.

The H-1B cap is 65,000 H-1B numbers. Up to 6,800 visas can be set aside for applicants from Chile and Singapore. The USCIS Ombudsman has advised AILA Liaison that 6,358 H-1B numbers that were unused last year have been added to this year’s pool. Therefore, the total number of H-1Bs available for this year is 64,500. Since USCIS has accepted 57,300 cap-eligible petitions, only approximately 7,000 visa numbers were available as of the end of 2010.

The USCIS has updated it count for available H-1B cap numbers. As of November 26, 2010, approximately 50,400 out of 65,000 H-1B cap-subject petitions had been received by USCIS and they had received 18,400 out of 20,000 petitions for applicants with advance degrees.

Usually, at this time of the year, the use of H-1B numbers starts to increase. Accordingly, companies should move forward quickly with new H-1B visa applications.

USCIS has reported that as of August 6, 2010 it has issued receipts for 28,500 H-1B cap-subject petitions, leaving 36,500 available H-1Bs in the general or “bachelor’s cap” allotment. Additionally, USCIS has issued 11,900 H-1B receipts for those with advanced degrees, leaving 8,100 H1Bs available in the “master’s cap” allotment. In the event that the master’s cap allotment is used up before the general cap allotment, those with advanced degrees will then be counted as part of the general cap allotment

USCIS reports that as of July 2, there are still plenty of H-1Bs available for fiscal year 2011. Specifically, there are more than 40,000 H-1Bs remaining in the “regular” pool available to those who qualify for an H-1B but do not have an advanced degree from a U.S. institution. For those who have completed a master’s degree or higher a U.S. institution, there are just under 10,000 H-1Bs still available.

The posted processing times on the USCIS website for H-1B petitions seem to be extremely inaccurate. While the processing times show that USCIS is taking 2 months to adjudicate H-1B petitions, it is currently taking longer than that. As of June 18, 2010 our office had received adjudications in approximately 3% of our H-1B cases filed in April. We will continue to update this blog as we see additional adjudications and if we receive better information regarding processing times.

USCIS has reported that as of June 11, 2010 it has issued receipts for 22,000 H-1B cap-subject petitions, leaving 43,000 available H-1Bs in the general or “bachelor’s cap” allotment. The prior update was 3 weeks ago at which time approximately 19,000 receipts had been issued. Therefore, it appears about 1000 H-1Bs are being filed each week.

USCIS has issued 9,400 H-1B receipts for those with advanced degrees, leaving 10,600 H1Bs available in the “master’s cap” allotment. In the event that the master’s cap allotment is used up before the general cap allotment, those with advanced degrees will then be counted as part of the general cap allotment.

On January 8, 2010, USCIS issued a very troublesome Memo which changed decades of immigration law. The Memo changed the definition of “employer” for immigration petitions in a way that makes it more difficult for owners of companies to obtain non-immigrant visas. It also makes it more difficult for computer consulting companies to obtain H-1B visas for their consultants. The complaint, which includes an application for preliminary injunction, was filed in the United States District Court for the District of Columbia. Hopefully, this lawsuit will lead to a settlement or a favorable verdict so that the more unreasonable aspects of this Memo will be ameliorated.